Jerabek v. City of St. Joseph

• Decision Date: 04 December 1911
• Citation: 141 S.W. 456,159 Mo. App. 505
• Parties: JERABEK v. CITY OF ST. JOSEPH.
• Court: Missouri Court of Appeals

141 S.W. 456

159 Mo. App. 505

JERABEK v. CITY OF ST. JOSEPH.

Kansas City Court of Appeals. Missouri.

December 4, 1911.

JURY (§ 58)—SELECTION—STATUTES—APPLICATION—POPULATION.

Rev. St. 1909 c. 64, art. 4, provides that in all counties having cities of more than 100,000 population and less than 400,000 petit jurors shall be selected by a board of jury commissioners, composed of judges of the circuit and criminal courts of such counties. By the federal census of 1900, the city of St. Joseph had more than 100,000 population, and the judges, as jury commissioners, proceeded, in October, 1910, to draw a jury for the term in accordance with such act; but before this transpired the federal census for 1910 was officially announced, showing that the city had fallen from the former enumeration, and was below the minimum population required by the statute. Held, that the statute was no longer applicable, and that the jury was illegally drawn.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Charles Jerabek against the City of St. Joseph. Judgment for plaintiff, and defendant appeals. Reversed.

W. B. Norris, O. E. Shultz, and Phil A. Slattery, for appellant. Mytton & Parkinson, for respondent.

ELLISON, J.

Plaintiff is a minor, who was injured on one of defendant's sidewalks. Charging his injury to the negligence of defendant in its care of the walk, he brought this action to recover damages, and obtained judgment in the circuit court.

Before the trial, defendant moved to quash the panel of jurors for illegality in the mode of securing, selecting, and summoning. The trial court overruled the motion. The panel was selected and obtained in accordance with article 4, c. 64, R. S. 1909, which provides that in all counties of this state having cities of more than 100,000 population and less than 400,000 petit jurors shall be selected by a board of jury commissioners, composed of the judges of the circuit and criminal courts of such counties. The mode of selection is pointed out in detail by the statute, consisting, in part, of putting names in a wheel and drawing names therefrom. By the federal census of 1900, the defendant city had the proper population for the application of that statute, and the judges, as jury commissioners, as required by that act, selected the panel for the October, 1910, term of the court—the term at which this case was tried. But before this transpired the federal census of 1910 was officially announced, whereby it appears that the city had fallen from the former enumeration, and was below the minimum population required by the statute aforesaid. To determine and settle the disturbed condition into which this placed legal procedure in Buchanan county, a writ of quo warranto was brought...