Bailey v. Deverick
| Decision Date | 27 June 1962 |
| Docket Number | No. 2667,2667 |
| Citation | 142 So.2d 775 |
| Parties | Francis P. BAILEY, Jr., et al., Appellants, v. Mabel R. DEVERICK and Ida Velna Tracey Ridge, Appellees. |
| Court | Florida District Court of Appeals |
William L. Stewart of Stewart & Stewart, Fort Myers, for appellants.
John M. Hathaway and Walter R. Condon, Punta Gorda, for appellees.
This is an action in ejectment. Two brothers, Frank P. Bailey and E. R. Bailey, were the owners of record as tenants in common of the property involved in this action. Frank P. Bailey died intestate, leaving as his heirs at law, Francis P. Bailey, Jr., Sam Bailey and John Bailey. The latter are three of the plaintiffs who are appellants here. E. R. Bailey died testate, and Charlotta Mathews, Young Men's Christian Association, a non-profit corporation, and the Protestant Episcopal Theological Seminary of Virginia, a non-profit corporation, are the residuary devisees under his will. They are the remaining plaintiffs and appellants. The defendants (appellees) are mother and daughter, who claim title to the property by virtue of adverse possession under color of title.
In the course of empaneling the jury, the record shows the following:
'Let the record show that the Defendants have previously used three challenges and that the Defendants now challenge pre-emptorily Mrs. Bacock to which Plaintiffs object on the grounds that the Defendants have used all of their pre-emptory challenges that are granted to them by law.
'THE COURT: The Court overrules the objection and rules each side has nine pre-emptory challenges.'
The empaneling was resumed, and the plaintiffs exercised seven peremptory challenges and the defendants exercised nine. The jury was accepted by all of the parties; and at the conclusion of the trial, it rendered a verdict in favor of the defendants. The plaintiffs appeal from the final judgment assigning as error, among other things, the ruling of the court allowing both sides nine peremptory challenges.
Section 54.11, Florida Statutes, F.S.A., grants the right of peremptory challenges of jurors. This section has been comprehensively analysed in Utilities Service, Inc. v. Replogle, Fla.App.1959, 110 So.2d 438, holding that when several persons whose interest are common are joined on either side of a civil action, they should be treated as but one party within the meaning of the statute. The interest of persons of the same side of an action must be essentially or potentially different or hostille to give each such litigant the number of peremptory challenges allowed to a party.
In this case, the interests of all of the plaintiffs were common, the interests of the defendants were common, and therefore the plaintiffs were entitled to three peremptory challenges and the defendants were entitled to the same number. The fact that there were three different attorneys, each separately representing certain of the plaintiffs, was immaterial. There was no showing of divergence involving potential conflicts or the existence of present or inevitable hostility between the parties. We not proceed to determine whether or not the error was prejudicial requiring...
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...of the United States Supreme Court. However, even the Florida courts have subsequently rejected this reasoning. See Bailey v. Deverick, 142 So.2d 775 (Fla.App.1962), in which the Court held that changes in Florida's statute governing peremptory challenge deprived Williams v. Pichard of prec......
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Blades v. DaFoe, 83SC306
...are granted prejudice must be established by the party adversely affected, we are not persuaded by their analysis. See Bailey v. Deverick, 142 So.2d 775 (Fla.App.1962); Wilson v. Ceretti, 210 N.W.2d 643 (Iowa 1973); Fick v. Wolfinger, 293 Minn. 483, 198 N.W.2d 146 (1972); Leary v. Kelly Pip......
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NICHOLAS v. State of Fla.
...Lambrix v. Dugger, 529 So.2d 1110, 1112 (Fla.1988) (citing Piccott v. State, 116 So.2d 626 (Fla.1959)); see also Bailey v. Deverick, 142 So.2d 775, 777 (Fla. 2d DCA 1962) (citing Piccott, 116 So.2d 626, and applying the rule in a civil case). But once the jury has been impanelled, the defen......
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Nicholas v. State Of Fla.
...v. Dugger, 529 So. 2d 1110, 1112 (Fla. 1988) (citing Piccott v. State, 116 So. 2d 626 (Fla. 1959)); see also Bailey v. Deverick, 142 So. 2d 775, 777 (Fla. 2d DCA 1962) (citing Piccott, 116 So. 2d 626, and applying the rule in a civil case). But once the jury has been impanelled, the defenda......