May v. Hoover

• Decision Date: 02 December 1887
• Citation: 112 Ind. 455,14 N.E. 472
• Parties: May v. Hoover et al.
• Court: Indiana Supreme Court

112 Ind. 455

14 N.E. 472

May

v.Hoover et al.

Supreme Court of Indiana.

December 2, 1887.

Appeal from circuit court, Bartholomew county; Nelson R. Keyes, Judge.

Plaintiffs, Abel Hoover et al., commenced an action against Joseph D. Sidner. The cause was tried, and appeal taken. Pending the appeal, Sidner died, and his executor, William J. May, was substituted. The judgment was reversed, a new trial had, and from the judgment rendered upon that trial William J. May, executor, as defendant, appealed. Appellees move to dismiss the appeal, on the ground that it had not been taken within the time, nor in the manner, prescribed in Rev. St. 1881, §§ 2454-2457, relating to appeals in matters connected with decedents' estates, as amended in 1885, by Acts 1885, p. 194.

Amos Burns, M. D. Emig, G. W. Cooper, and F. T. Hord, for appellant. John C. Orr and Norton & Smith, for appellees.

Zollars, J.

In 1882, appellees, who were partners doing business under the firm name of Hoover & Co., commenced an action against Joseph D. Sidner. The action was based upon an account for the value of an “Excelsior Harvester and Binder.” The cause was tried, and an appeal taken to this court. While the cause was pending here, Sidner died, and appellant, as the executor of his will, was substituted as appellee. The judgment having been reversed, ( see Hoover v. Sidener, 98 Ind. 290,) another trial was had below, in 1885. From the judgment rendered upon that trial appellant prosecutes this appeal.

Appellees have moved to dismiss the appeal, for the reason that it was not taken within the time, nor in the manner, prescribed by section 2454, 2456, 2457, Rev. St. 1881, and 2455, Rev. St. 1881, as amended in 1885. Acts 1885, p. 194. It is sufficient here to say that the question presented by this motion and argument has recently been before this court and decided adversely to their motion. Heller v. Clark, 103 Ind. 591, 3 N. E. Rep. 844; Wright v. Manns, 111 Ind. 422, (425,) 12 N. E. Rep. 160.

Prior to the last trial below, appellees demanded a struck jury, as provided by the statute, (Code Ind. § 525.) The parties attended at the clerk's office at the time fixed, and from the list of 40 names selected by the clerk each struck off 12. On the day set for the trial, 12 of the remaining 16 jurors, not struck from the clerk's list, appeared, and were called, and took their places in the jury-box. They were not challenged for cause. Over appellants objections and exceptions, appellees were allowed to peremptorily challenge two of them, and they were discharged by the court, also over appellant's objection and exception, and the panel was filled from the by-standers. The record thus presents the question as to whether or not parties may peremptorily challenge struck jurors. We have reached the conclusion that they have not that right.

Section 525 of the Code, supra, after prescribing the method of selecting a struck jury, provides that, “upon the trial of the cause, the jury so struck shall be called as they stand upon the panel; and the first twelve of them who shall appear, and are not challenged for cause, or set aside by the court, shall be the jury, and shall be sworn to try the issue; provided, however, that unless at least one-half of such struck jury shall have been summoned, and shall be in attendance when such cause is called for trial, the cause shall be tried by the regular petit jury as other cases.” This section, it will be observed, recognizes the rights of challenge for cause, and impliedly, at least, prohibits any other challenge. In the construction of the statute, the maxim expressio unius est exclusio alterius (Broom, Leg. Max. 652) should be applied. The mention of the challenge for cause excludes, by implication, peremptory challenges. Section 531 of the Code provides that, in all cases where the jury consists of six or more persons, each party shall have three peremptory challenges. Appellees contend that this section and section 525, supra, should be construed together, as they are found in the same article of the present Code, and that, when thus construed, it must be held that the latter section confers the right to peremptorily challenge struck jurors. The purpose of construction is to arrive at and give effect to the intention of the legislature in the enactment of the laws. Middleton v. Greeson, 106 Ind. 18, 5 N. E. Rep. 755, and the cases there cited. In order to ascertain that intention as to any statute, or section of a statute, all of its various sections and provisions should be construed together, so as to make the statute in all its parts consistent as a whole. Wasson v. Bank, 107 Ind. 206, (211, 212,) 8 N. E. Rep. 97. It is also proper, in cases of doubt, to look to the legislative history of a statute, or sections of a statute. Stout v. Board, etc., 107 Ind. 343, 8 N. E. Rep. 222. Section 531 of the present Code is the same as section 313 of the Code of 1852, (Rev. St. 1876, p. 161.)

At the time of the Code of 1852 was adopted, and for nine years thereafter, that section had relation to ordinary juries, and not to struck juries, because, until 1861, struck juries were unknown in our practice. In 1861 (Acts 1861, p. 45; 2 Rev. St. 1876, p. 159) an act authorizing struck juries was passed. That act of four sections was substantially the same as sections 525-528 of the present Code, (Rev. St. 1881.) The act of 1861 was thus re-enacted into the Code of 1881 as a part of it. It is reasonable to presume that, in thus re-enacting that act into the Code of 1881, the legislature did so upon the assumption that, as a part of that Code, it should be construed as it should have been while it stood alone, as a separate act. As a separate act of subsequent date to the Code of 1852, which provided for challenges of jurors, its proper construction, doubtless, should have been, had the question been raised, that it not only did not provide for peremptory challenges of struck jurors, but impliedly denied that right.

These observations have weight with us in reaching the conclusion that, construing the sections of the Code of 1881 together, the legislature did not intend that either party should have the right of peremptory challenge in the case of a struck jury.

Under a statute similar to section 531, supra, it has been held in Pennsylvania that struck jurors may be peremptorily challenged. The decisions, however, seem to have been rested upon a custom which was not very satisfactory to the court. In the case of Schwenk v. Umsted, 6 Serg. & R. 351, the court, in speaking of the case before it, and the statute which provided “that, in all civil suits, each party shall be allowed to challenge two jurors peremptorily,” used this language: “The several acts respecting jurors are to be considered collectively, as forming one general system, and explanatory of each other. The essence and spirit of this privilege is that a party shall possess the power of challenging at least two persons who may be obnoxious to him, but against whom there is no legal exception as jurors. This is a proper indulgence, even to prejudice; but the reason ceases when he has an opportunity of striking off twelve. If the practice had not prevailed to the contrary, I should much doubt this right in any case of special jury. Why should this indulgence and arbitrary discretion be extended to fourteen? Why should the suitor, after striking out...