Schneider v. Chew

• Decision Date: 12 June 1911
• Parties: SCHNEIDER v. CHEW et al.
• Court: Missouri Court of Appeals

138 S.W. 357

157 Mo. App. 354

SCHNEIDER v. CHEW et al.

Springfield Court of Appeals. Missouri.

June 12, 1911.

1. JURY (§ 53*) — SUMMONING — REGULAR JURY — STATUTE — "BYSTANDERS."

Under Rev. St. 1909, § 7268, providing that, when ordered by the court, the sheriff shall summon petit jurors from the bystanders, and that no person shall be summoned as a standing juror twice within one year, the last provision does not relate to jurors summoned by the sheriff from the bystanders; for "bystanders" means talesmen, and statutes describing the mode of drawing regular jurors do not affect the power of the court, when a panel has become exhausted, to call in talesmen, irrespective of prior service.

2. JURY (§ 53*) — COMPETENCY — STATUTE — CONSTRUCTION.

Rev. St. 1909, § 7268, declaring the law applicable to the summoning of jurors in counties of a certain population, and containing no provision for challenge of a juror on the ground of prior service, as is done in the jury law for counties in other classes, the directions therein must be regarded as directory merely, and it is not ground of challenge, under section 7268, that a juror has served on the regular panel within 12 months.

3. CONTRACTS (§ 248*) — MODIFICATION — QUESTION FOR JURY.

In an action on a written contract, evidence as to a subsequent parol modification held sufficient to go to the jury.

4. APPEAL AND ERROR (§ 994*) — REVIEW — FINDINGS — CREDIBILITY OF WITNESSES.

The determination of the credibility of witnesses is for the trial court sitting as a jury, or the jury.

Error to Circuit Court, Jasper County; David E. Blair, Judge.

Action by Joseph Schneider against T. J. Chew and others. There was a judgment for defendants in a justice's court, and plaintiff appealed to the circuit court, where judgment was again rendered for defendants, and plaintiff brings error. Affirmed.

Horace Merritt, for plaintiff in error.

GRAY, J.

On the 16th day of February, 1910, the plaintiff filed his statement before a justice of the peace in Jasper county, wherein he claimed the defendants were indebted to him in the sum of $105 for the rent of a pump, from the 1st day of October, 1909, to the 21st day of February, 1910. The defendants appeared and the issues were determined in their favor, and the cause was appealed to the circuit court. On trial in the circuit court, before a jury, April 29, 1910, the defendants were again successful, and plaintiff appealed to this court. The appeal was dismissed at the October term, 1910. On the 11th day of March, 1911, plaintiff sued out a writ of error from this court.

When the list of jurors was submitted to plaintiff, the record shows he made the following objection: "Plaintiff objects to the panel submitted for him to make his challenges from, for the reason that four or five of the men who compose the said panel have stated that they have been summoned and served on the regular jury in the circuit court of this county within the last 12 months [naming five of said jurors], and the reason for the objection is that the statutes, as amended in Session Acts of 1901, provide that no person shall be summoned to serve upon the standing or regular jury more than once in 12 months, or in more than one term of court in 12 months." The court overruled the objection, and an exception was saved.

By reference to the Session Acts of 1901 (now section 7268, R. S. 1909), it will be seen there are two ways provided to secure a standing petit jury. The first, by the county clerk in the presence of the court; and the second, in case of a failure of the county court to select such jury, the sheriff of the county shall summon petit jurors from the several townships, according to their respective populations, as the case may be, and not less than 10 days before the first day of the term of court for which such jurors are summoned. The section further provides that the sheriff, when ordered by the court demanding the jury, shall summon petit jurors during such term from the bystanders. And then follows the provision, "that no person shall be summoned as such standing juror twice within the period of one year in any court of record."

Without passing on the question whether a juror who has served on a regular panel within 12 months can be challenged by a litigant when serving as a regular member of a standing jury within 12 months thereafter, it is sufficient for the purposes of this case to say that the record...