Reed v. Madison County
| Decision Date | 02 March 1938 |
| Docket Number | 99. |
| Citation | 195 S.E. 620,213 N.C. 145 |
| Parties | REED v. MADISON COUNTY et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Madison County; A. Hall Johnston, Judge.
Action by L. C. Reed against Madison County and others to recover emoluments of office. From a directed verdict and judgment for plaintiffs, defendants appeal.
New trial ordered.
That jury was subject to challenge to the array because drawn by a jury commission created by unconstitutional statute would not entitle defendants to venire de novo in absence of showing of prejudice, especially where no member of original panel served and jury was composed of talesmen.
Civil action to recover certain emoluments or perquisites belonging to the office of auditor of Madison county.
In apt time, the defendants entered a challenge to the array of the jury on the ground that the jury commission which drew the panel for the November term, 1937, Madison superior court was not a proper legal agency for drawing such panel; the said commission having been created by chapter 177 Public-Local Laws 1931. Overruled; exception.
The defendants denied the validity of plaintiff's election to the office of auditor; pleaded the two-year statute of limitations, C. S. § 442, Pub.Laws 1933, c 318, § 1, and controverted the amount of time and mileage set out in plaintiff's claim.
There was a directed verdict and judgment for plaintiff, from which the defendants appeal, assigning errors.
Roberts & Baley, of Marshall, for appellants.
Carl R. Stuart, of Marshall, and Smathers & Meekins, of Asheville, for appellee.
It follows from what is said in the case of Brigman v. Baley, N.C., 195 S.E. 617, herewith decided, that the challenge to the array should have been sustained. McIntosh, N.C.Prac. and Proc. 596. But this alone would not entitle the defendants to a venire de novo. State v. Levy, 187 N.C. 581, 122 S.E. 386. Non constat, that they may not have had a jury to their liking or that they were prejudiced thereby. Indeed, it appears from the record that no member of the original panel served on the jury in this case. It seems to have been composed of talesmen. Judgments are not to be disturbed for jury defect except upon proper showing of prejudice. State v. Gosnell, 208 N.C. 401, 181 S.E. 323.
Upon another ground, however, defendants are entitled to a new trial. His honor inadvertently directed a verdict for the plaintiff in the face of the plea of the statute of limitations and the controverted evidence relative to the correctness of the amount of time and mileage set out in plaintiff's claim. It is true, the principal matter debated on the hearing was the legality of plaintiff's election as auditor, but this was not the whole case. There were issues of fact for the jury, as well as questions of law for the court, with the burden on the plaintiff throughout.
It is seldom that a verdict can properly be directed in favor of the party upon whom rests the burden of proof. Globe Yarn Mills v. Armstrong, 191 N.C. 125, 131 S.E. 416. Indeed, it is said in some of the cases that "a verdict can never be directed in favor of the party upon whom rests the burden of proof." Cox v. R. R., 123 N.C. 604, 31 S.E. 848; House v. R. R., 131 N.C. 103, 42 S.E. 553.
As plaintiff is suing for the emoluments or perquisites of a public office, he is not to recover on a quantum meruit. Borden v. Goldsboro, 173 N.C. 661, 92 S.E. 694, 695.
Speaking to the question in the Borden Case, Brown, J., delivering the opinion of the court, said: ...
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