Ray v. Collins

• Decision Date: 13 August 1925
• Docket Number: No. 3711.,3711.
• Parties: RAY v. COLLINS et al.
• Court: Missouri Court of Appeals

274 S.W. 1098

RAY v. COLLINS et al.

No. 3711.

Springfield Court of Appeals. Missouri.

August 13, 1925.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by Major Willie Ray against E. D. Collins, T. H. Shipman, and J. B. Austin. From a judgment for plaintiff, defendants Shipman and Austin appeal. Affirmed.

John T. McKay, of Kennett, for appellants.

Smith & Zimmerman, of Kennett, for respondent.

COX, P. J.

Action upon a note. Judgment by default against Collins. Trial by jury of six as to the other two defendants; verdict and judgment for plaintiff, and defendants Shipman and Austin appealed.

This case was first tried before a justice of the peace, and reached the circuit court by appeal. After verdict in the circuit court, the defendants filed a motion for new trial and also a motion in arrest of judgment, in both of which error is alleged in trying the case by a jury of six men, and without the consent of defendants, and without a full jury being waived as provided by law. Evidence was heard on the question of waiver of a full jury, after which the motions for new trial and in arrest of judgment were overruled.

We do not regard the testimony taken on the hearing of the motion for new trial as material, for the rule seems to be that the manner of trial, by jury or otherwise, and whether or not a jury is waived, is a matter to be shown by the record, and the question of the failure to impanel a jury in a case triable by jury may be raised for the first time in a motion in arrest of judgment. Briggs v. St. Louis S. F. Ry. Co., 111 Mo. 168, 20 S. W. 32; Frowein v. Poage, 231 Mo. 82, 90, 132 S. W. 241.

The general statute (section 1400, Stat. 1919) provides that a party will be deemed to have waived a trial by jury by failing to appear at the trial, by written consent filed with the clerk, or by oral consent in court entered on the minutes. The cases above cited and some others seem to hold that, unless the record shows a waiver of a jury in one of the ways provided by the statute the error is fatal to the judgment. There are other cases which seem to hold that, if a party participates in the trial and does not demand a jury, he thereby waives it, even though the record may be silent on that question. See Jones v. Moore, 42 Mo. 413, 419; Pike v. Martindale, 91 Mo. 268, 278, 1 S. W. 858; Nishnabotna Drainage District v. Campbell, 154 Mo. 151, 160, 55 S. W. 276; Kansas City v. Woerishoeffer, 249 Mo. 1, 24, 155 S. W. 779; Sprague v. Carroll (Mo. Sup.) 188 S. W. 63; Gillham v. Metropolitan St. R. Co., 282 Mo. 118, 130, 221 S. W. 1. None of these cases, however, overrule or in any way refer to the Briggs and Frowein Cases, supra, on the question involved here, and we shall determine that question on the record before us.

The judgment in this case, after giving the names of the parties, contains the following recital:

"Now at this day come the above-named plaintiff and defendants in person and by their attorneys, and announce ready for trial, and this cause is submitted to the following jury, who have been duly summoned, chosen, qualified, and sworn, namely [here follows the names of six men], and the trial proceeds upon the testimony adduced by the plaintiff and defendants, * * * and at the close of all the evidence, and after the jury have been duly instructed in writing by the court on the law, and after the argument of counsel, the jury retired to deliberate of their verdict. * * *"

This record recites that this jury of six men were "duly summoned, chosen, and qualified." The men to compose a jury panel are summoned by the process of the court, but the men to try a particular case are chosen by the counsel representing the parties who choose them by...