Eshelman v. The Chicago, Rock Island & Pacific R'y Co

• Decision Date: 23 October 1885
• Citation: 25 N.W. 251,67 Iowa 296
• Parties: ESHELMAN v. THE CHICAGO, ROCK ISLAND & PACIFIC R'Y CO
• Court: Iowa Supreme Court

25 N.W. 251

67 Iowa 296

ESHELMAN v. THE CHICAGO, ROCK ISLAND & PACIFIC R'Y CO

Supreme Court of Iowa, Dubuque

October 23, 1885

Appeal from Jefferson Circuit Court.

ACTION to recover for certain cattle killed by a train upon defendant's railroad, at a place where the right to fence existed. There was a judgment upon a verdict for plaintiff. Defendant appeals.

REVERSED.

Wilson & Hinkle, for appellant.

J. B McCoy and R. F. Ratcliff, for appellee.

OPINION

BECK, CH. J.

I. The record shows that after the evidence and arguments of counsel were submitted to the jury upon Saturday, they were permitted to separate until Monday, when it appeared that one of them was sick and unable to attend court. Thereupon the sick juror was discharged, and the court, against defendant's objection, submitted the cause to the remaining eleven jurors. This is now complained of as error.

II. The jury contemplated by the constitution is the jury recognized by the common law, which is constituted of twelve persons. In securing the right of trial by jury, that instrument gives no authority to the legislature to provide for a less number than twelve jurors. It was ruled by this court twenty-seven years ago that a jury consisted of twelve persons, and that a verdict of a less number was of no effect unless the objection was waived. Cowles v. Buckman, 6 Iowa 161. The doctrine of this case has never been brought in question since its decision. It follows that Code, § 2793 authorizing a verdict from ten or eleven jurors, when the jury has been reduced to that number by sickness, is in conflict with the constitution.

III. It is insisted by plaintiff that this objection was waived by defendant by a motion for judgment upon a special verdict. We think differently. The defendant objected to the jury at the proper time because of the absence of one juror. But the objection was overruled. It was not then required to abandon the defense of the case, but was authorized to contest it even before an unlawful jury, and to insist upon all objections arising upon the trial. It was authorized to ask a verdict at the hands of such jury, and a judgment thereon, and this was all it did by the motion for judgment upon the special findings.

IV. The defendant insists that the petition is defective, and not sufficient to support the verdict, in that it fails to aver that the cattle killed went upon the railroad track and were killed by...