Berry v. Trunk

• Decision Date: 07 December 1914
• Docket Number: No. 11250.,11250.
• Citation: 185 Mo. App. 495,172 S.W. 629
• Parties: BERRY v. TRUNK.
• Court: Missouri Court of Appeals

172 S.W. 629

185 Mo. A. 495

BERRY v. TRUNK.

No. 11250.

Kansas City Court of Appeals. Missouri.

December 7, 1914.

Rehearing Denied January 11, 1915.

1. JURY (§ 66) — SELECTION OF PANEL.

Where the clerk of the jury commission board, who was also clerk of the court, after drawing from the jury wheel the names of the panel, delivered the names to the deputy clerk of the court, for certification to the trial court, instead of doing so himself, or, if he were unable, having the judge do so as required, and the panel so drawn should have been discharged.

2. JURY (§ 66) — SELECTION OF PANEL — CERTIFICATION.

Even if Laws 1911, p. 306, § 5, were only directory, instead of mandatory, in requiring certification of the panel by the clerk of the jury commission board, it would not warrant such certification by a total stranger to the drawing.

3. JURY (§ 118) — MOTION TO DISCHARGE PANEL — SUFFICIENCY.

A motion to discharge the jury panel on the grounds that it had not been drawn and summoned as required by law, in that, among other things, no list of the panel was made in

the order in which the jurymen were drawn from the wheel, nor was any list at all made by the clerk of the board, is sufficient to present the objection that the names, after being drawn from the wheel, were handed to the deputy clerk of the court, by whom they were certified to the trial court.

Appeal from Circuit Court, Buchanan County; Wm. D. Rusk, Judge.

Action by Silas H. Berry against Benjamin H. Trunk. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Vinton Pike, of St. Joseph, and O. C. Mossman, of Kansas City, for appellant. Norris & Miller, of St. Joseph, for respondent.

ELLISON, P. J.

Plaintiff, seated in his wagon drawn by two horses, was driving along a public road, when defendant approached from the rear in an automobile at high speed and much noise. Plaintiff's horses became frightened and ran away, throwing him out and inflicting severe injury. He brought this action for damages, and recovered judgment in the trial court for $6,000.

At the opening of the trial, in proper time, defendant filed a motion to discharge the jury panel, which the court overruled, and due exception was taken. The ground of the motion is that the panel had not been drawn and summoned as required by law, in that, among other things, no list of the panel was made in the order in which the jurymen were drawn from the wheel; nor was any list at all made by the clerk of the board.

By the Laws of 1911, p. 305, the Legislature provided a jury commission board in counties having between 60,000 and 200,000 inhabitants; and Buchanan county is one of that class. Section 2 of the act constituted the judge or judges of the circuit court and the judge of the court having jurisdiction in felony cases as such board. By section 3 of said act it is made the duty of the board to cause to be made "a complete list, as near as they can, alphabetically arranged, of all the qualified jurors in the county and their residences." It will be seen by reference to the statute that this is a complete general list of jurors, and that under the terms of sections 9 and 14 it is corrected from time to time, as information may come to the board, and by section 15 it is revised every three months by adding names of those who become qualified. But there is also a special list of each panel selected for service. Under the provisions of sections 5 and 6, these special lists are made up from the names on the cards drawn (in the presence of the judge) from the wheel by "the clerk of said board, so situated as to be unable to see the names on such card." The statute immediately following this continues:

"A list of the names, so drawn, shall be made and preserved by the clerk of the board and a certified copy of the same shall by said clerk be delivered to the clerk of the court for which the jurors were drawn," and, "in the event of sickness, absence or disability of the clerk of the board, the judge so ordering the jury shall draw and certify the same as herein provided."

When the panel in controversy was selected by drawing the cards from the wheel, the clerk of the board (who was also clerk of the trial court) took and delivered them to his deputy clerk of that court, and he certified a list of the names on those cards to the trial court, as the panel. We think his act entirely without the provisions of the law and being so was, of course, void.

The statute (section 2) puts the clerkship of the board at the disposal of the board. The clerk of the court is clerk of the board, unless the board shall select one of his deputies to be the clerk. In no instance is there authority for a deputy clerk of the court to act for the board, unless he has been named by the board as clerk of the board. There is no deputy authorized by the statute in the absence of...