Board of Com'rs of Pitkin County v. First Nat. Bank of Aspen

• Decision Date: 10 June 1895
• Parties: BOARD OF COM'RS OF PITKIN COUNTY v. FIRST NAT. BANK OF ASPEN.
• Court: Colorado Court of Appeals

40 P. 894

6 Colo.App. 423

BOARD OF COM'RS OF PITKIN COUNTY v. FIRST NAT. BANK OF ASPEN.

Court of Appeals of Colorado

June 10, 1895

Appeal from district court, Pitkin county.

Action by the First National Bank of Aspen against the board of county commissioners of Pitkin county to recover the fees of jurors. A demurrer to the complaint was overruled, and defendant appeals. Reversed.

Robert G. Withers, for appellant.

Charles R. Bell, for appellee.

THOMSON J.

The complaint alleges that on March 8, 1893, there issued out of and under the seal of the county court of Pitkin county a special venire, addressed to the sheriff, and commanding him to summon 24 good and lawful persons of the county to appear before the court on that day, to serve as jurors for the term; that the sheriff afterwards, and on the same day, made return of the venire that he had, in obedience to the command, summoned certain persons to serve as jurors; that, after the jurors summoned had served as such during the term, the court issued to them its certificate showing the number of days of service, the mileage traveled and the amount due from the county for their services; that certain of the jurors, after receiving their certificates for a valuable consideration sold and assigned them to the appellee, who presented them to the board of county commissioners for allowance and payment, which was refused. Judgment is demanded for the amount due upon them. The board of county commissioners, defendant, demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and, the defendant declining to plead further judgment was rendered for the plaintiff, from which the defendant prosecutes an appeal to this court. The question in controversy is whether, upon the allegations of the complaint, the county is liable for the fees of these jurors. On the 6th day of April, 1891, an act of the general assembly was approved, relating to jurors. Sess.Laws 1891, p. 248. The first section divides the counties of the state into four classes, based upon population, and makes it the duty of the board of county commissioners of any county, 60 days or more before the time appointed for holding a district court in that county, to select from its inhabitants having the proper qualifications such number of competent persons to serve as jurors as is prescribed for the class to which that county belongs, the names selected to be certified by the clerk of the board to the clerk of the district court. The second section provides that the clerk of the district court shall write the names so certified to him on ballots, one name on each ballot, and place such ballots in one compartment of a two-compartment box, provided for the purpose; and that, 30 days before the term, and afterwards as often as the court shall order, he shall call the sheriff to his assistance, and in his presence draw by chance from the compartment a sufficient number of names, placing the ballots drawn in the other compartment. This section concludes with the following provision: "In case a jury is required in the county court, to try either civil or criminal cases, the judge of the county court shall so notify the clerk of the district court in writing, stating in such notice the number of jurors desired, whereupon the clerk of the district court shall call to his assistance the sheriff, and shall draw from the box the requisite number of jurors, and shall certify their names to the clerk of the county court, who shall then issue a venire to the sheriff to summon the jurors so drawn and make it returnable, as the said county court may order, which court shall, so far as possible, fix the trials of jury cases for some definite time, and shall try them successively by the same panel of jurors, so far as is practicable, and when the trials are over he shall discharge such jury from further attendance. Talesmen may be secured in the county court in the same way as they are in the district court. After said jurors are drawn and their names certified to the clerk of the county court, as provided in this section, all laws, proceedings and practice applicable to jurors in district courts, shall apply to jurors in county courts." The construction of the foregoing sections, disconnected from the remaining portions of the act, does not seem to us to be a matter of difficulty. Section 1 devolves certain duties upon the board of county commissioners preparatory to furnishing the district court with jurors for the purposes of its succeeding term. Section 2, after prescribing the method of their selection for trials in that court, provides for supplying the county court, out of the list certified to the district court, with a panel of jurors to serve during the term. The intention was to furnish the county court with a regular panel for the trial of all jury cases, and to place the jurors composing it upon the same footing with jurors in the district court. It is provided that, after the jurors are drawn and their names certified to the clerk of the county court in the manner prescribed by the section, all laws applicable to jurors in district courts shall apply to them. Among these laws is the following: "The clerk shall without fee, furnish to each juror who shall attend at any term of court, a certificate showing the number of days that such juror shall have attended at such term; and upon presentation thereof to the county commissioners, they shall issue to such juror their warrant upon the county treasury for the amount of the per diem and mileage of such juror." Gen.St. 1883, § 1922. Unless there is something further in the act under...