Birmingham Union St. R. Co. v. Ralph

• Decision Date: 27 April 1891
• Citation: 9 So. 222,92 Ala. 273
• Parties: BIRMINGHAM UNION ST. R. CO. v. RALPH.
• Court: Alabama Supreme Court

9 So. 222

92 Ala. 273

BIRMINGHAM UNION ST. R. CO. v. RALPH.

Supreme Court of Alabama

April 27, 1891

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

Code Ala. § 2752, provides that "in all actions triable by jury either party may demand a struck jury, and must thereupon be furnished by the sheriff with a list of twenty-four jurors in attendance upon the court, from which a jury must be obtained by the parties or their attorneys alternately striking one from the list until twelve are stricken off, the party demanding the jury commencing; and the jury thus obtained must not be challenged for any cause except bias or interest as to the particular case."

Hewitt, Walker & Porter, for appellant.

Bowman & Harsh, for appellee.

COLEMAN J.

The plaintiff demanded a struck jury, and, in accordance with the statute, a list of 24 jurors in attendance upon the court was furnished, from which a jury of 12 were obtained, by the attorneys striking 1 from the list until 12 were stricken off, and the jury then selected was called to the jury-box when one of the jurors stated to the court he was too unwell to sit as a juror; and, against the objection of the defendant, the sick juror was excused, reducing the number of jurors to 11. Thereupon the court ordered the sheriff to call one of the jurors who had been struck from the list. The defendant objected to the order of the court, and his objection was overruled, and the sheriff called one of the jurors who had been stricken off by the defendant from the list, and he was put upon the defendant, who peremptorily challenged him. The same order was repeated by the court and the same proceedings had until the defendant's challenges were exhausted, in each instance the juror called by the sheriff being one that defendant had stricken from the list. The fifth juror called was put upon the jury, and completed the jury, against the objection of the defendant. Section 2752, Code, provides that in all actions triable by jury either party may demand a struck jury, and thereupon the sheriff must furnish a list of 24 jurors, from which the struck jury must be obtained; and the jury thus obtained must not be challenged for any cause except bias or interest in the particular case. There were but 24 jurors in attendance upon the court. Exceptions were severally reserved to the action of the court as each juror was called by the sheriff and before he was challenged.

Did the court err in ordering the sheriff to call a juror from those who had been stricken from the list, and in putting him upon the defendant? The right to a struck jury upon the demand of either party is clearly secured by statute. If there should be a less number in attendance than 24, it is the duty of the court to complete the list of competent and qualified persons to 24 before the process of rejection or striking off should commence. Railroad Co. v. Smith, 8 South. Rep. 43. (This case is reported in 90 Ala. 25, but no facts are stated to show the...