National Bank of Boyertown v. Schufelt

• Decision Date: 24 April 1906
• Docket Number: 2,190.
• Citation: 145 F. 509
• Parties: NATIONAL BANK OF BOYERTOWN v. SCHUFELT.
• Court: U.S. Court of Appeals — Eighth Circuit

145 F. 509

NATIONAL BANK OF BOYERTOWN v. SCHUFELT.

No. 2,190.

United States Court of Appeals, Eighth Circuit.

April 24, 1906

William H. Kornegay and Luther Perkins, for plaintiff in error.

Charles W. German, Edwin C. Meservey, and Cameron L. Orr, for defendant in error.

Before VAN DEVANTER, HOOK, and ADAMS, Circuit , and ADAMS, Circuit Judges.

VAN DEVANTER, Circuit Judge.

This was an action in replevin instituted by the plaintiff in error to recover the possession of cattle to which he asserted a right of possession under a chattel mortgage. A trial before a jury resulted in a verdict for the defendant and the judgment entered thereon was subsequently affirmed by the Court of Appeals of the Indian Territory. 82 S.W. 927. In the course of impaneling the jury it appeared that one Tiger who was on the regular panel of petit jurors for that term and who was offered as a juror in the case, had served as a juror in that court at a prior term and within a year, but whether his service had been as a grand juror or as a petit juror was not disclosed. The plaintiff challenged him for cause on the ground of his prior service, and the challenge was overruled. The plaintiff reserved an exception to the ruling, and afterward excluded him from the jury on a peremptory challenge. The other peremptory challenges accorded to the plaintiff were also used, but whether he was thus enabled to exclude from the jury all objectionable persons does not appear. Complaint is made of the overruling of the challenge for cause and the matter is presented in the briefs as if its solution depended largely upon whether the statute of the United States declaring 'no person shall serve as a petit juror more than one term in any one year' (Act June 30, 1879, c. 52, Sec. 2, 21 Stat. 43; Ind. T. Ann. St. Sec. 4193), or the statute of Arkansas (Mansfield's Dig. Sec. 3995, Ind. T. Ann. St. 1899, Sec 2675), declaring 'no person shall be compelled to serve as a grand or petit juryman more than one term in any one year,' is controlling in the Indian Territory under the existing legislation of Congress. Act March 1, 1889, c. 333 Sec. 8, 25 Stat. 784; Act June 30, 1879, c. 52, Sec. 2, 21 Stat. 43; Act May 2, 1890, c. 182, Secs. 29-31, 26 Stat. 93, 94; Act March 2, 1895, c. 145, Secs. 6, 13, 28 Stat. 697, 698; Ind. T. Ann. St. 1899, Secs. 8, 4193, 29, 30, 31, 50, 57. We do not, however, deem it necessary to consider which of the two statutes is controlling, because in neither event was the ruling erroneous. Under the federal statute to operate as a disqualification the prior service must have been in the capacity of a petit juror, but, as before stated it was not shown to have been of that character. Under the Arkansas statute, the prior service, whether as a grand or petit juryman, did not operate as a disqualification, but only as a personal exemption, which the person called as a juror could assert or waive as he chose.

Complaint is made of the admission of certain evidence on behalf of the defendant, but as no exception was reserved to the ruling, the plaintiff must be held to have acquiesced in it, and to have waived the objection made to the evidence. Hutchins v. King, 1 Wall. 53, 60, 17 L.Ed. 544; Railway Co. v. Heck, 102 U.S. 120, 26 L.Ed. 58; Rodriguez v. United States, 198 U.S. 156, 165, 25 Sup.Ct. 617, 49 L.Ed. 994.

These facts were disclosed at the trial: One Harrelson was the owner of two bunches of cattle, all of which were branded 'Circle D' on the left hip. One bunch, containing approximately 326 head of three year old...