Derryberry v. Higdon
| Decision Date | 27 September 1967 |
| Docket Number | Nos. 43015,43029,No. 3,s. 43015,3 |
| Parties | Fred DERRYBERRY by Next Friend et al. v. James P. HIGDON. James P. HIGDON v. Bertha D. TORBETT |
| Court | Georgia Court of Appeals |
Wilkes T. Thrasher, Chattanooga, Tenn., Frank M. Gleason, Rossville, for appellant.
Shaw, Stolz & Fletcher, George P. Shaw, Lafayette, Robert Edward Surles, Summerville, for appellee.
Syllabus Opinion by the Court
Mrs. Bertha Derryberry Torbett filed separate negligence actions in her own behalf and as next friend of her minor son, Fred Derryberry, in the City Court of Walker County, seeking to recover for losses allegedly caused by a collision on a public road between a motorbike operated by her son and a truck operated by the defendant. The cases were consolidated for trial and resulted in verdicts and judgments for the defendant, from which a joint appeal was filed subsequent to the overruling of motions for a new trial. The defendant filed a cross appeal relating solely to the action of Mrs. Torbett in her own behalf. Held:
1. The first three enumerated errors in the main appeal are identical with the general grounds of a motion for new trial, and are insisted upon only to the extent of the issue raised by the fourth enumerated error. In the fourth enumerated error it is contended that the jury was illegally constituted, resulting in the denial of a trial by jury, because the jurors were not selected in the manner provided by the Act amending Code § 59-106, approved on March 30, 1967, and effective immediately (Ga.L., 1967, p. 251). The transcript of the charge of the court shows that the jury trial commenced on April 3, 1967. The documents before this court fail to disclose that the issue was raised at the onset or during the course of the jury trial, and apparently the issue was first asserted as Ground 4 of the motions for new trial, dated April 18, 1967. The transcript of the hearing on the motions for new trial indicates that the jury list was made up in accordance with the law in effect when the cases were originally scheduled for trial on March 27, 1967, and that jury trial was postponed for one week to allow counsel representing Mrs. Torbett to appear on other matters in another court.
'A defect which goes to the legality of the selection of the panel of jurors is ground for challenge to the array.' Carter v. The State, 143 Ga. 632, (2c), 85 S.E. 884; Thompson v. The State, 109 Ga. 272(2), 34 S.E. 579; Dunham v. The State, 32 Ga.App. 416(4), 123 S.E. 723; Cobb v. Atlanta Coach Company, 46 Ga.App. 633, 635, 168 S.E. 126. The right to such a challenge is expressly recognized in the trial of felony cases. Code § 59-803. The procedure is also available in misdemeanor cases. Thompson v. State, supra. A defendant in a criminal case who fails to raise such a question when the panel is put upon him waives it once and for all. Williams v. The State, 210 Ga. 665, 668, 82 S.E.2d 217; s.c., 211 Ga. 763, 764, 88 S.E.2d 376.
While a challenge to the array by such a name is peculiar to the trial of criminal cases, see Atlantic Coast Line Railroad Company v. Mead, 22 Ga.App. 70(2), 95 S.E. 476; Teem v. Cox, 148 Ga. 175, 96 S.E. 131, the right to challenge the entire panel as to qualifications in the trial of a civil case, irrespective of the name applied to the procedure, is clearly available to a party under the provisions of Code § 59-704. Georgia Procedure and Practice, p. 336, § 15-7. The Supreme Court has recognized such a procedure in a civil case by means of a written motion to disqualify the entire panel of jurors, and a motion for mistrial because of the alleged unlawful jury. Reynolds v. Reynolds, 217 Ga. 234, 262, 123 S.E.2d 115. Thus, while determining that the provisions of Code Ann. § 59-106 then in effect were mandatory, the Supreme Court had no reason to consider any issue of...
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Cargill v. State
...from which alternate jurors were chosen. See generally Carter v. State, 143 Ga. 632(2), 85 S.E. 884 (1915); Derryberry v. Higdon, 116 Ga.App. 381(1), 157 S.E.2d 559 (1967). In addition, the appellant's complaint is moot in view of the fact that no alternate jurors were called upon to serve.......
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Bailey v. Todd, 47209
...waives his right and has no ground for complaint after verdict. Felker v. Johnson, 53 Ga.App. 390, 395, 186 S.E. 144; Derryberry v. Highdon, 116 Ga.App. 381, 157 S.E.2d 559; Corvair Furn. Mfg. Co. v. Bull, 125 Ga.App. 141(2), 186 S.E.2d It should be noted this court has undertaken to examin......
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Corvair Furniture Mfg. Co. v. Bull
...But failure to enter the challenge at the proper time-at least prior to verdict-amounts to a waiver of the ground. Derryberry v. Higdon, 116 Ga.App. 381(1), 157 S.E.2d 559. And in Derryberry it was asserted in this connection that 'Ignorance of the new law which became effective four days b......
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Holsey v. State
...or there shall be a waiver of the right to contest its composition. Williams v. State, 210 Ga. 655, 82 S.E.2d 217 and Derryberry v. Higdon, 116 Ga.App. 381, 157 S.E.2d 559. Ga.Code Ann. § 27-1403 requires only that the state furnish a list of the witnesses on whose testimony the charge agai......