Ledger v. McKenzie

• Decision Date: 07 December 1938
• Docket Number: 7775,7776.
• Parties: LEDGER v. McKENZIE. ODEKIRK v. SAME.
• Court: Montana Supreme Court

85 P.2d 352

107 Mont. 335

LEDGER v. McKENZIE.

ODEKIRK v. SAME.

Nos. 7775, 7776.

Supreme Court of Montana

December 7, 1938

Appeal from District Court, Eighth District, Cascade County: H. H Ewing, Judge.

Actions by Margaret Ledger and Alice R. Odekirk against E. D McKenzie to recover damages for personal injuries. Judgments for defendant, and plaintiffs appeal.

Affirmed.

Freeman Thelen & Freeman, of Great Falls, for appellants.

Cooper Stephenson & Glover, of Great Falls, for respondent.

ANDERSON Justice.

The plaintiffs brought separate actions against the same defendant for personal injuries severally sustained while riding as guests in an automobile driven by a third person. The cases were tried together in the district court, resulting in separate verdicts and judgments in favor of the defendant in each action. Separate appeals were perfected to this court from these judgments. The cases were argued together and present identical questions. Motions for new trial were made, heard and denied.

The errors assigned relate to the failure of the trial court to grant the motions for new trial. Cascade county, in which the cases were tried, is in the Eighth Judicial District, which district has two district judges. Both maintain chambers at Great Falls. It appears from the record that on April 19, 1937, in the trial of a cause then pending in the district court of Cascade county, the Honorable H. H. Ewing presiding declared an emergency and ordered a special venire to issue, to be drawn from jury box No. 3. A like order was made by the same judge in the same case, and a further venire ordered drawn from the same jury box on the succeeding day. From among the jurors drawn, certain of them from both panels reported and were added, pursuant to the order of the court, to the regular trial panel theretofore drawn and in attendance upon the court. The other district judge, Honorable C. F. Holt, did not participate in the drawing of these two special panels.

Subsequently these cases came on for trial, with Judge Ewing presiding, and when the trial jury for these cases was drawn Judge Holt did not participate in the drawing of the jury. Some of the jurors drawn in these special panels were selected as jurors on the trial of these cases. No challenge to the array was interposed and no objection made challenging the right of any of these jurors to serve, until the motions for new trial were made.

Sections 8903, 8904, 9334 and 9341, Revised Codes, were amended by Chapter 151 of the Laws of 1937 (sections 1-3, 5). They relate to the drawing of regular panels of trial jurors, the drawing of jurors for the trial of issues of fact in any case, and the drawing of jurors from jury box No. 3, where they are drawn for the purpose of participating in a single cause. The amendatory Act does not expressly amend section 8911, relating to the drawing of jurors from jury box No. 3 for the participation in the trial of cases. These amendatory sections provide that in counties where there are two or more district judges residing, each of such judges must participate in such drawing, and the capsules shall be drawn alternately by such judges, and lots shall be cast to determine the order in which such judges shall draw.

As stated, Judge Holt did not participate in the drawing of any of these jurors mentioned supra. It is the contention of the plaintiffs on these appeals that his failure to so participate was an irregularity in the proceedings of the court entitling them to new trials.

Section 9343 declares that each party may challenge the jurors as follows: (1) To the panel or array; (2) for cause; and (3) peremptorily. Section 9344 enumerates the various grounds for challenging for cause. We have said with...