Clark v. Whiten, No. 57162

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtBefore WALKER; ROBERTSON; WALKER
Citation508 So.2d 1105
PartiesFred CLARK v. Debra L. WHITEN.
Docket NumberNo. 57162
Decision Date27 May 1987

Page 1105

508 So.2d 1105
Fred CLARK
v.
Debra L. WHITEN.
No. 57162.
Supreme Court of Mississippi.
May 27, 1987.
Rehearing Denied July 15, 1987.

Page 1106

Frank G. Vollor, Vicksburg, for appellant.

W. Richard Johnson, Vicksburg, for appellee.

Before WALKER, C.J., and ROBERTSON and ANDERSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This is a paternity action. On appeal we are presented a challenge to the jury's finding of paternity. The matters of support for the child and the mother's attorneys

Page 1107

fees are also before us. For the reasons discussed below, we affirm in part and reverse in part.

II.

On November 19, 1984, Haywood Montrel Whiten was born to Debra L. Whiten, at that time and now an unmarried female. On or about May 14, 1985, Debra L. Whiten filed in the Chancery Court of Warren County her complaint to establish that Fred Clark, an adult resident citizen of Warren County, was and is the father of her child. See Miss.Code Ann. Sec. 93-9-1 et seq. (1972). In due course, Clark answered, denying the essential allegations of the complaint and demanding trial by jury.

On September 10, 1985, the Chancery Court entered an order transferring the matter to the County Court of Warren County "for all further proceedings and trial by jury."

On November 5, 1985, the matter was called for trial in the County Court. Two days later, on November 7, 1985, the jury returned a verdict finding "Fred Clark to be the natural father of Haywood Montrel Whiten." The jury's verdict also assessed Clark with attorneys fees of $1,000.00.

Pursuant to this jury verdict, the County Court on November 8, 1985, pursuant to this jury verdict entered its order of filiation adjudging Clark to be the natural father of Haywood Montrel Whiten, providing that Clark "will be responsible to Haywood Montrel Whiten as allowed by law." The order further assessed attorneys fees against Clark.

Following the overruling of his motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, Clark has appealed to this Court. He assigns as error the refusal of the County Court to empanel a jury of twelve jurors, the overruling of his motion for a new trial, and the assessment of attorneys fees. Debra L. Whiten has cross-appealed the refusal of the trial court to submit to the jury the issue of support for the minor child or to enter judgment thereon.

III.

Clark first assigns as error the overruling of his request that a twelve person jury be empaneled. It will be recalled that, though originally filed in the Chancery Court, this matter was transferred to the County Court of Warren County following Clark's demand for trial by jury. The County Court, in accordance with the rules generally applicable, proceeded to empanel a jury of only six persons. See Rule 48(b), Miss.R.Civ.P. Clark relies upon Miss. Const. Art. 3, Sec. 31 (1890) and Miss.Code Ann. Sec. 93-9-15 (1972) in support of his claim. Clark confuses the historically familiar with the legally necessary.

To begin with, Rule 48(b) provides for a six person jury in County Court. That rule controls unless it is overriden by superior law. Rule 81(a)(9), Miss.R.Civ.P., provides that, with respect to paternity proceedings such as that before us today, statutory provisions supply the rules of procedure where there is conflict between the two. But when we turn to Section 93-9-15, we see only that defendants such as Clark are entitled to trial by jury. See Metts v. State Department of Public Welfare, 430 So.2d 401, 405 (Miss.1983). Nothing in the statute in any way suggests the number of jurors that may be required. If Section 93-9-15 provided for twelve jurors, it would override Rule 48(b). As written, however, there is no conflict. Accordingly, Rule 48(b) and its six person juror requirement prevails.

The same result obtains when we examine our constitution. Section 31 provides for trial by jury in civil cases and authorizes further the less than unanimous verdict. Nothing in Section 31, however, mandates juries of twelve persons in the County Court, or any other court. We make this latter comment in the context of Clark's argument that, because his action was originally brought in Chancery Court, the trial by jury requirement applicable to that court controls in the County Court to which the case was transferred "for administrative convenience in empaneling the jury." But there is nothing in the Constitution that requires a jury of twelve. See

Page 1108

Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973). That Jesus of Nazareth had twelve Apostles does not translate into a constitutional requirement that a civil jury number twelve.

The assignment of error is denied.

IV.

Clark next assigns as error that portion of the jury's verdict and order of filiation assessing against him Whiten's attorneys fees in the amount of $1,000.00. He argues that there is an absence of evidence of the "reasonableness of the bill, the value of the services rendered, and the necessity of the time spent."

Miss.Code Ann. Sec. 93-9-45 (1972) provides that, in the event that the court enters an order of filiation declaring the male defendant to be the father of the child, that defendant "shall be taxed ... [with] the cost of the legal services of the attorney representing the petitioner...." We find implicit in the statute the further requirements that the costs so taxed be reasonable and necessary and that the party claiming these costs prove her entitlement.

Ordinarily, such an assessment could be made by the court without the aid of the jury. The right of trial by jury afforded by Section 93-9-15 applies only to "the issue of paternity." In the present record, however, it appears that Debra asked that the issue of attorneys fees be submitted to the jury. Instruction P-4, which she requested, reads

The Court instructs the jury that if you find Fred Clark to be the natural father of Haywood Montrel Whiten, you are allowed to award Debra L. Whiten reasonable attorneys fees incurred by her in this cause.

This instruction was given by the trial judge and was in fact submitted to the jury. Instruction P-6, a form of the verdict instruction, provided that the jury, if it found for Whiten, might assess "attorneys fees of $__________." We find on this record that each party waived any right he or she may have had to have the fee issue resolved by the court sans jury assistance.

The evidence reflects that Whiten had a fee arrangement with her attorney wherein he would charge her $50.00 per hour for his services. The record reflects a statement for services rendered dated November 4, 1985--the day before the trial began--wherein counsel charged Whiten for twenty and a half hours at $50.00 per hour for a total fee of $1,025.00. The...

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21 practice notes
  • Splain v. Hines, No. 89-CA-00055
    • United States
    • United States State Supreme Court of Mississippi
    • August 26, 1992
    ...duty to explain its basis for rejecting an instruction proper under this standard or, in the alternative, to correct it. Clark v. Whiten, 508 So.2d 1105, 1109 fn. 2 (Miss.1987); Byrd v. McGill, 478 So.2d 302, 305 (Miss.1985). Our review, however, is not nearly so formalistic as this might T......
  • Ivy v. Illinois Cent. Gulf R. Co., No. 56800
    • United States
    • United States State Supreme Court of Mississippi
    • July 22, 1987
    ...Reed Construction Co. v. Nicholas Acoustics and Specialty Co., 379 So.2d 308 (Miss.1980) and 387 So.2d 98 (Miss.1980); Clark v. Whiten, 508 So.2d 1105 (Miss.1987) (not yet reported), that power is exercised as a matter of convenience and not Our chancery courts have long been vested with a ......
  • Lovett v. E.L. Garner, Inc., No. 56782
    • United States
    • United States State Supreme Court of Mississippi
    • July 29, 1987
    ...necessity of the attorneys fees. We hold Garner's proof on the attorneys fees issue inadequate as a matter of law. See Clark v. Whiten, 508 So.2d 1105, 1108 (Miss.1987); Gilchrist Machinery Co. v. Ross, 493 So.2d 1288, 1292-94 (Miss.1986); Bumgarner v. Bumgarner, 475 So.2d 455, 456 (Miss.19......
  • Mississippi Transp. Com'n v. Bridgforth, No. 96-CA-00926-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • April 2, 1998
    ...v. Franklin County Timber Co., Inc., 488 So.2d at 787; City of Jackson v. Landrum, 217 Miss. 10, 63 So.2d 391 (1953). Havard, 508 So.2d at 1105. In the case sub judice, the jury traveled from Tunica County to DeSoto County to view the property. It was presented with the testimony of two exp......
  • Request a trial to view additional results
21 cases
  • Splain v. Hines, No. 89-CA-00055
    • United States
    • United States State Supreme Court of Mississippi
    • August 26, 1992
    ...duty to explain its basis for rejecting an instruction proper under this standard or, in the alternative, to correct it. Clark v. Whiten, 508 So.2d 1105, 1109 fn. 2 (Miss.1987); Byrd v. McGill, 478 So.2d 302, 305 (Miss.1985). Our review, however, is not nearly so formalistic as this might T......
  • Ivy v. Illinois Cent. Gulf R. Co., No. 56800
    • United States
    • United States State Supreme Court of Mississippi
    • July 22, 1987
    ...Reed Construction Co. v. Nicholas Acoustics and Specialty Co., 379 So.2d 308 (Miss.1980) and 387 So.2d 98 (Miss.1980); Clark v. Whiten, 508 So.2d 1105 (Miss.1987) (not yet reported), that power is exercised as a matter of convenience and not Our chancery courts have long been vested with a ......
  • Lovett v. E.L. Garner, Inc., No. 56782
    • United States
    • United States State Supreme Court of Mississippi
    • July 29, 1987
    ...necessity of the attorneys fees. We hold Garner's proof on the attorneys fees issue inadequate as a matter of law. See Clark v. Whiten, 508 So.2d 1105, 1108 (Miss.1987); Gilchrist Machinery Co. v. Ross, 493 So.2d 1288, 1292-94 (Miss.1986); Bumgarner v. Bumgarner, 475 So.2d 455, 456 (Miss.19......
  • Mississippi Transp. Com'n v. Bridgforth, No. 96-CA-00926-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • April 2, 1998
    ...v. Franklin County Timber Co., Inc., 488 So.2d at 787; City of Jackson v. Landrum, 217 Miss. 10, 63 So.2d 391 (1953). Havard, 508 So.2d at 1105. In the case sub judice, the jury traveled from Tunica County to DeSoto County to view the property. It was presented with the testimony of two exp......
  • Request a trial to view additional results

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