O'Mallie v. Harlan & Hollingsworth Corporation, a Corporation of State

• Court: Delaware Superior Court
• Writing for the Court: Per Curiam:
• Citation: O'Mallie v. Harlan & Hollingsworth Corporation, a Corporation of State, 99 A. 428, 29 Del. 312 (Del. Super. 1916)
• Decision Date: 02 December 1916
• Parties: JOHN O'MALLIE v. HARLAN & HOLLINGSWORTH CORPORATION, a corporation of the State of Delaware

99 A. 428

29 Del. 312

JOHN O'MALLIE v. HARLAN & HOLLINGSWORTH CORPORATION, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

December 2, 1916

Superior Court, New Castle County, November Term, 1916.

Action by John O'Mallie against the Harlan & Hollingsworth Corporation. On application by defendant for a special jury. Application denied.

Application by Harlan & Hollingsworth Corporation for a special jury after the second general jury for the term had been drawn.

Rule 13, § 4, as amended, appendix, 3 Boyce, provides Applications for special juries shall be made at or before the time the calendar is made.

A calendar for the trial of this and other cases for the term by the general jury was made and published on the twenty-fourth day of November, no application having been made for a special jury.

On the second day of December, after the second jury was drawn, and three or four days before the case was calendared for trial an application was made for a special jury. Defendant's counsel insisted that as the right to a special jury was given by statute it could not be taken away or abridged by a rule of court; that the rule was made when there was but one jury for the term and it should be either amended in view of the present law, or disregarded after a new jury is drawn, there being just as much reason for a special jury then as after the first jury is drawn.

Counsel for plaintiff opposed the motion, contending that under the rule of court the defendant's application is too late and cannot be granted. And they also contended that the court has the right, under its power to regulate its procedure and the trial of causes, to enforce such rule.

Application refused.

William W. Knowles and Levin Irving Handy for plaintiff.

William S. Hilles for defendant.

PENNEWILL C. J., and RICE J., sitting.

OPINION

Per Curiam: We think the defendant's application should not be granted because it would require the court to either amend or disregard the rule referred to.

The rule of court is as follows: "Applications for special juries shall be made at or before the time the calendar is made."

The court has never favored applications for special juries, and particularly since the present jury law has been in force. Such applications were formerly very common, but now exceedingly rare. The right to a special jury is given by statute, and the rule of court does not...