State ex rel. Freeman v. Ponder, 105

Decision Date31 October 1951
Docket NumberNo. 105,105
Citation67 S.E.2d 292,234 N.C. 294
PartiesSTATE ex rel. FREEMAN et al. v. PONDER et al.
CourtNorth Carolina Supreme Court

Kester Walton, Asheville, for relators Roy Freeman, Glenn Reems, Marty Buckner, and Vaughn Carter, appellees.

J. W. Haynes, Asheville, A. E. Leake, Marshall, and George A. Shuford, Asheville, for defendant, E. Y. Ponder, appellee.

J. M. Baley, Jr., and Clyde M. Roberts, Marshall, for defendant Hubert Davis, appellant.

ERVIN, Justice.

Before the trial jurors were selected or sworn, Davis made a motion alleging in detail that the interests of the relators and Ponder were 'identical and opposed to those of the defendant Davis' and praying 'that the relators and defendant Ponder be permitted to exercise the six peremptory challenges to the jury allowed by statute to one party in a civil action and that this defendant be permitted to exercise the six peremptory challenges to the jury allowed by statute to the other party to a civil action, or that the defendant * * * Ponder be, in the discretion of the court, designated as a party-plaintiff and that his answer be treated as a complaint.' The motion was resisted by the relators and Ponder. The former alleged that they brought the 'action in good faith and of their own volition as citizens and taxpayers of Madison County for the sole * * * purpose of having a judicial determination made of the * * * controversy * * as to who was legally entitled to hold the office of Sheriff of Madison County * * as a result of the election held November 7, 1950,' and the latter asserted that he could not be made a party-plaintiff because he did 'not have leave of * * * the Attorney-General * * * to institute this action.'

The trial judge ruled that the relators were entitled to six peremptory challenges under the provisions of G.S. § 9-22, and entered an order denying 'the motion of the defendnat Davis that the defendant * * * Ponder be * * * designated as a party plaintiff and that his answer be treated as a complaint.' The order recited, however, 'that there are divers and antagonistic interests between the defendants Ponder and Davis' and made this adjudication: 'It is ordered and decreed by the Court, in its discretion, that the number of challenges to each defendant be and is hereby increased to four, that is, the defendant Ponder is to have four challenges, and the defendant Davis is to have four challenges, under Section 9-23, General Statutes of North Carolina.' Davis noted an exception to this order.

After Davis had used four peremptory challenges, he undertook to challenge two of the trial jurors, namely, Thad Bradford and Vance Hensley, peremptorily, and the trial judge disallowed such challenges on the ground that Davis had already exhausted the peremptory challenges allotted to him by law. Davis took exceptions to these rulings.

He complains that the relators and Ponder sought the same relief, and that in consequence the order and rulings of the trial judge permitted 'his opposition to have ten peremptory challenges to his four.'

Be this as it may, the propriety of the order and rulings relating to peremptory challenges is plain when due heed is paid to general rules of practice created by pertinent statutes. If we are to have a government of laws rather than one of men, law suits must be tried according to general rules of procedure established by law for all like cases. Judges cannot be expected or permitted to devise special rules on the spur of the moment to fit the supposed exigencies of particular trials.

The statutes codified as Article 41 of Chapter 1 of the General Statutes prescribe a specific mode for trying the title to a public office. Rogers v. Powell, 174 N.C. 388, 93 S.E. 917; Burke v. Commissioners of Bessemer City, 148 N.C. 46, 61 S.E. 609; Ellison v. Raleigh, 89 N.C. 125. Such relief is to be sought in a civil action. G.S. § 1-514; Cozart v. Fleming, 123 N.C. 547, 31 S.E. 822. But a private person cannot institute or maintain an action of this character in his own name or upon his own authority, even though he be a claimant of the office. Saunders v. Gatling, 81 N.C. 298. The action must be brought and prosecuted in the name of the state by the Attorney-General, G.S. § 1-515; or in the name of the state upon the relation of a private person, who claims to be entitled to the office, Gower v. Carter, 194 N.C. 293, 139 S.E. 604, 605; Harkrader v. Lawrence, 190 N.C. 441, 130 S.E. 35; Smith v. Lee, 171 N.C. 260, 88 S.E. 254; Stanford v. Ellington, 117 N.C. 158, 23 S.E. 250, 30 L.R.A. 532, 53 Am.St.Rep. 580; Rhodes v. Lee, 153 N.C. 468, 69 S.E. 436; or in the name of the State upon the relation of a private person, who is a citizen and taxpayer of the jurisdiction where the officer is to exercise his duties and powers. Midgett v. Gray, 158 N.C. 133, 73 S.E. 791; Barnhill v. Thompson, 122 N.C. 493, 29 S.E. 720; Houghtalling v. Taylor, 122 N.C. 141, 29 S.E. 101; Hines v. Vann, 118 N.C. 3, 23 S.E. 932; Foard v. Hall, 111 N.C. 369, 16 S.E. 420. Before any private person can commence or maintain an action of this nature in the capacity of a relator, he must apply to the Attorney-General for permission to bring the action, tender to the Attorney-General satisfactory security to indemnify the State against all costs and expenses incident to the action, and obtain leave from the Attorney-General to bring the action in the name of the State upon his relation. G.S. § 1-516; Cooper v. Crisco, 201 N.C. 739, 161 S.E. 310; Midgett v. Gray, 159 N.C. 133, 74 S.E. 1050. A single action may be brought against all persons claiming the same office to try their respective rights to the office. G.S. § 1-520.

Since Ponder had no leave from the Attorney-General permitting him to sue as a relator, he was incapacitated by law to prosecute the instant action against Davis. The trial judge could not confer upon Ponder the legal power denied to him by positive legislative enactment through the simple expedient of designating Ponder a party-plaintiff and treating his answer as a complaint. For this reason, the motion of Davis was rightly denied.

Challenges to the polls, i. e., to the individual jurors, are of two kinds: Challenges for cause; and peremptory challenges. A challenge for cause is a challenge to a juror for which some cause or reason is assigned. State v. Levy, 187 N.C. 581, 122 S.E. 386. A peremptory challenge is a challenge 'which may be made or omitted according to the judgment, will, or caprice of the party entitled thereto, without assigning any reason therefor, or without being required to assign a reason therefor.' 50 C.J.S., Juries, § 280. See, also, these North Carolina decisions: Oliphant v. Atlantic Coast Line R. Co., 171 N.C. 303, 88 S.E. 425; Dupree v. Virginia Home Insurance Co., 92 N.C. 417. The right to challenge jurors for cause may be exercised without limit as to number so long as the cause or reason assigned is sufficient. 50 C.J.S., Juries, § 268. It is otherwise, however, with respect to peremptory challenges. A litigant cannot exercise any more peremptory challenges than the number allowed to him by law. State v. Powell, 94 N.C. 965; Capehart v. Stewart, 80 N.C. 101.

The general rule regulating the right of peremptory challenge in civil actions is embodied in G.S. § 9-22, which specifies that 'the parties, or their counsel for them, may challenge peremptorily six jurors * * * without showing any cause therefor.' This general rule limits all of the parties on one side of a civil case to a total of six peremptory challenges, no matter how numerous such parties may be. Bryan v. Harrison, 76 N.C. 360.

The general rule is subject to this statutory exception: If there are two or more defendants, and their interests are diverse and antagonistic, the judge may in his discretion, apportion the six peremptory challenges among the defendants, or he may increase the number of peremptory challenges, so as to allow each defendant or class representing the same interest not more than four peremptory challenges. The statute which creates this exception, i. e., G.S. § 9-23, expressly stipulates that 'the decision of the judge as to the nature of the interests and number of challenges shall be final.'

The relators had plenary authority to make both Ponder and Davis party defendants in this action for the purpose of trying their respective claims to the sheriffalty of Madison County. The law did not require them to assume a posture of neutrality between the rival claimants. Indeed, it contemplated that they should take such position in the litigation as they deemed consistent with truth. The general statutory right to six peremptory challenges devolving upon them as all the parties on one side of the case was not annulled or impaired by their assertion that justice lay with Ponder, or by Ponder's concurrence in that assertion. The statute creating the exception to the general rule regulating peremptory challenges in civil actions clothed with finality the decision of the trial judge awarding four peremptory challenges to each of the defendants. These things being true, the exceptions to the rulings on the peremptory challenges are untenable.

In passing from this phase of the litigation, we think it not amiss to make some additional observations. In conformity with their statutory duties, the Madison County Board of Elections adjudged that Ponder was elected sheriff at the general election of November 7, 1950, and the Chairman of the Madison County Board of Elections furnished Ponder with a certificate of election reciting that conclusion. G.S. §§ 163-86, 163-91, and 163-92. The adjudication of the Board and the resultant certificate of election constituted conclusive evidence of Ponder's right to the sheriffalty in every proceeding except a direct proceeding under Article 41 of Chapter 1 of the General Statutes to try the title to the office. Ledwell v. Proctor, 221 N.C. 161, 19 S.E.2d 234; Cohoon v. Swain, ...

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