Scott v. Russell

• Decision Date: 31 January 1867
• Parties: THOMAS SCOTT AND ELI CRISP, Defendants in Error, v. WILLIAM RUSSELL AND JAMES MUSICK, Plaintiffs in Error.
• Court: Missouri Supreme Court

39 Mo. 407

THOMAS SCOTT AND ELI CRISP, Defendants in Error,

v.WILLIAM RUSSELL AND JAMES MUSICK, Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1867.

Error to Cole Circuit Court.

J. E. Belch, for plaintiffs in error.

I. It is insisted that the court erred in denying the defendant's trial by jury. The value of controversy was over twenty dollars. Const. of U. S., § 7, of Amendments: “A petit jury shall consist of twelve citizens duly qualified.” Defendants were entitled to this on the trial of an appeal from a justice--1 Binn. 416; 8 Ohio N. S., 205. The Legislature had no power to deprive the defendants below of this right. The fact that the counsel for defendants did not state that he demanded a jury of twelve till after the plaintiffs exercised their right of challenge is immaterial. The right must be waived, and that should be entered of record (30 Mo. 600); and can be taken advantage of in a motion in arrest, though no objection is interposed before trial.

II. The court erred in not dismissing the suit on motion of defendants--R. C. 1855, p. 925, § 3.

III. In proceedings for fhe recovery of specific personal property, the jurisdiction conferred on justices is the value of the property; not as in other cases, where the plaintiff can remit the amount claimed--5 Blackf. 308; 6 Blackf. 397; 1 Gill. 203 & 33. The same construction has been given in this court in several cases--30 Mo. 478; 30 Mo. 488 & 200.

Ewing & Smith and King, for defendants in error.

I. Notwithstanding the 8th article of the bill of rights annexed to the Constitution of State provides that the right of trial by jury shall remain inviolate, and the principles enunciated in Bk. of Mo. v. Anderson, 1 Mo. 175, and in Vaughan v. Scade, 30 Mo. 600, yet there was no error committed by the Circuit Court in refusing to try this case by a jury of twelve men. Inasmuch as defendants below permitted without objection the court to interrogate jurors, and submitted a list of twelve competent persons to plaintiff's counsel from which to make their challenges, and allowed plaintiff's counsel to make their challenges and handed the list to defendants, who, after they had seen the names challenged by plaintiffs, then for the first time demanded that the case be tried by twelve men, the defendants are estopped from making such demand. The silence and acquiescence of the defendants as to the action of the court in making the jury, implied their assent thereto.

II. The defendants' motion to dismiss the cause in the court below after it was disclosed by the evidence that the said property was of more than fifty dollars in value, was very properly overruled. The Circuit Court had jurisdiction. The amount claimed by plaintiffs in their complaint determined the jurisdiction--Buckner v. Armour, 1 Mo. 534; Langham et al. v. Boggs, 1 Mo. 477.WAGNER, Judge, delivered the opinion of the court.

This was an action instituted before a justice of the peace in Cole county, for the recovery of a mare alleged in the complaint to belong to the plaintiffs. Judgment was rendered in the justice's court for plaintiffs, and defendant appealed to the Circuit Court, where, upon a trial anew, plaintiffs obtained a verdict, and judgment was entered thereon. The defendants, after an unsuccessful motion for a new trial and in arrest of judgment, sued out their writ of error to this court.

When the cause was called in the Circuit Court, both parties announced themselves ready for trial, and the court then ordered jurors to be sworn to answer questions touching their competency. When the number of twelve competent jurors had been obtained, the list was handed to the plaintiff's counsel, who, after examining the same, struck three names therefrom, and then handed the list over to the defendant's counsel, who, after an inspection thereof, demanded more jurors, saying that he had not noticed that there were only twelve jurors sworn. The court refused to have other persons sworn, alleging as a reason therefor that twelve urors had been sworn and interrogated and found to be competent, and that defendants' counsel had not made any...