Kelsh v. Inc. Town of Dyersville

Decision Date18 December 1885
Citation68 Iowa 137,26 N.W. 38
CourtIowa Supreme Court


Appeal from Dubuque circuit court.

While walking on a sidewalk in one of the streets of the defendant town, plaintiff fell and sustained certain injuries. She alleges that the fall and injury were occasioned by a defect which defendant negligently permitted to exist in said sidewalk, and she prosecutes this action to recover damages therefor. She recovered a verdict and judgment in the circuit court. Plaintiff appeals.J. D. Alsop, James H. Shields, and McCeney & O'Donnell, for appellant, Incorporated Town of Dyersville.

Utt Bros. and S. M. Pollock, for appellee, E. J. Kelsh.


The cause came on for trial on the sixteenth of June, 1883. On that day a jury was empaneled to try the cause, and counsel for the respective parties made their opening statements. The court then adjourned until the eighteenth of the same month. When it convened on that day, and the jurors were called into the box, it was ascertained that one of the number had been taken sick during the adjournment, and that he was not able to perform his duties as a juror. The court thereupon ordered that he be discharged, and that the trial proceed with the remaining 11 jurors. Defendant objected to so much of the order as required the parties to try the cause with 11 jurors, and now assigns the same as error. In making the order the circuit court proceeded, doubtless, under the provisions of section 2793 of the Code, which provides that the course pursued by the court may be taken when, during the progress of the trial, a juror becomes incapacitated by sickness from discharging his duties. In the recent case of Eshleman v. Chicago, B. & Q. R. Co., 25 N. W. Rep. 251, we held that the section, so far as it assumes to empower the court to compel the parties to proceed with the trial with less than 12 jurors, is in conflict with section 9 of the bill of rights. Counsel for plaintiff contend, however, that as municipal corporations are mere creatures of legislation, whose powers may be modified or changed or taken away entirely at the pleasure of the legislature, they are in no position to question the constitutionality of the statute under which the court acted in making the order. They argue that, as the legislature has absolute power over the corporations, it would be competent for it to provide that claims against them should be passed upon by any tribunal...

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