Hutto v. Southern Ry. Co.

Decision Date15 October 1906
Citation55 S.E. 445,75 S.C. 295
PartiesHUTTO v. SOUTHERN RY. CO.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Barnwell County; Purdy Judge.

Action by Rosa Hutto against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Robert Aldrich, for appellant. E. T. La Fitte and J. F. Carter, for respondent.

JONES J.

The plaintiff brought this action to recover damages for the loss of a trunk and contents delivered to defendant as baggage on June 20, 1905, when she became a passenger on defendant's train from Denmark, in Barnwell county, to Calhoun, in Pickens county, and recovered judgment, from which defendant appeals.

After interposing a demurrer to the complaint for insufficiency which was overruled, defendant challenged the whole array of jurors drawn for the term, on the ground that the list from which the names were taken to be placed in the jury box was prepared by Mr. E. C. Bruce, the supervisor, and not by the jury commissioners, composed of the county auditor, county treasurer, and clerk of court, as provided in the jury law of 1902. After taking testimony on the point, Judge Purdy overruled the objection, under the authority of Rhodes v Southern Ry. Co., 68 S.C. 494, 47 S.E. 689. The testimony developing that the list was made up about the 1st of January, or early in January, instead of in December, as prescribed by the act, this fact was also urged as an objection to the array, but was also overruled, under the principle of said case, as a mere irregularity not sufficient to vitiate the drawing of the jury.

1. Appellant's first exception questions these rulings. We approve the ruling of the circuit court. The evidence shows that, while the supervisor did prepare a list of names for the jury commissioners, the jury commissioners carefully revised the same, and made a selection, from which the jury box was made up. The Rhodes Case, to which reference has been made, decides that the fact that the clerk of the board of county commissioners prepared a list of the electors from the tax books, which was canvassed and revised by the proper officers, was a mere irregularity, and therefore an insufficient ground for quashing the array of jurors. In the same case it was held that leaving the list in the clerk's office and not in the jury box, as required by statute, and the fact that there were two lists instead of one, are mere irregularities. In State v. Smalls, 73 S.C. 519, 53 S.E. 976, it was again declared that the statutes which prescribed the time and manner of selecting jurors are usually regarded as directory, and hence there was not a fatal defect, in drawing grand and petit jurors, to assign as grand jurors those regarded to be best qualified for grand jury duty, and leaving the others drawn for the petit jurors, although the statute prescribed that "the persons whose names are first drawn, to the number required shall be returned as grand jurors, and those afterwards drawn, to the number required, shall be jurors for trials." There is no suggestion in this case that the jurors selected were not good and lawful men qualified to sit as jurors, or that defendant's rights were in any wise injured or prejudiced by any conduct of the jury commissioners. The foregoing covers all the...

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