State ex rel. St. Louis, Keokuk & Northwestern Railway Company v. Withrow, Judge

• Decision Date: 17 March 1896
• Parties: The State ex rel. St. Louis, Keokuk & Northwestern Railway Company et al. v. Withrow, Judge
• Court: Missouri Supreme Court

36 S.W. 43

133 Mo. 500

The State ex rel. St. Louis, Keokuk & Northwestern Railway Company et al. v. Withrow, Judge

Supreme Court of Missouri

March 17, 1896

Application for prohibition against James E. Withrow, one of the judges of the circuit court of the city of St. Louis, on the ground that the Knapp-Stout & Co. Company had applied for a special jury in a certain condemnation proceeding wherein the said St. Louis, etc., Railway Company was plaintiff and the Knapp-Stout Company was defendant, and that the respondent judge had denied such application except in a manner as qualified by a rule of court, which is claimed to be in violation of the statute in such cases made and provided. Both parties to the condemnation proceeding are relators in the present one. The petition for the writ omitting caption, is the following:

"Now at this day come the St. Louis, Keokuk & Northwestern Railway Company, plaintiff, and the Knapp-Stout & Co. Company defendant, who respectfully represent to the supreme court of the state of Missouri and give said court here to understand and be informed that there is now pending in the circuit court of the city of St. Louis, and in division number three thereof, whereof the Honorable James E. Withrow is the presiding judge therein, a certain cause instituted by the St. Louis, Keokuk & Northwestern Railway Company, plaintiff v. The Knapp-Stout & Co. Company, defendant, the object and purpose of which is to condemn for railroad purposes, for the use of the plaintiff, a tract of land claimed to be of great value by the said defendant, in the city of St. Louis and state of Missouri, belonging to the defendant, The Knapp-Stout & Co. Company.

"Your petitioners further represent and show to the court, that said cause was set for trial in said division number three of the said circuit court of the city of St. Louis, on the fourteenth day of October, 1895, and that on the seventh day of October, 1895, the same being more than three days before the day set for the trial of said cause, the defendant in said suit, the said Knapp-Stout & Co. Company, in pursuance of section 29 of article 21 of the appendix of the Revised Statutes of 1889, and the laws of this state, made request of said court, and of the said James E. Withrow, judge thereof for a special jury; that in pursuance of said request, the said James E. Withrow, judge as aforesaid, made the following order:

"'The court, having considered the defendant's application for a special jury for the trial of this cause, doth grant the same and doth order said defendant to deposit forthwith $ 75 with the clerk of this court; and from time to time such further sum as may be required to meet all expenses hereunder.

"'And the court doth direct the jury commissioner of the city of St. Louis to draw and furnish to the sheriff of the city of St. Louis, the names of forty-five good and lawful men, and said sheriff is ordered to summon the persons so named to be and appear in room 3 of this court on Monday, October 14, 1895, at 10 o'clock A. M., then and there to serve as special jurors until discharged by the court.'

"That in pursuance of said order, the jury commissioner delivered to the sheriff of the city of St. Louis the names of forty-five persons to be summoned as jurors from whom a jury of twelve men was to be selected for the trial of said cause; that the persons whose names were furnished as aforesaid, were duly summoned by the sheriff aforesaid; that when said cause was called for trial in said court, the respondent herein, the said James E. Withrow, judge thereof, announced from the bench, that the parties to said cause would be required to select a jury for the trial thereof, in accordance with the following rule, which, said judge announced, had been adopted by all the judges of the circuit court of the city of St. Louis sitting in general term, to wit:

"'RULE 37.

"'1. When a special jury is ordered, the court making the order will designate therein the number of jurors to be drawn, not less than forty nor more than fifty, and thereupon the jury commissioner shall draw the number so designated from the jury wheel in the same manner as jurors for ordinary service are drawn, and shall furnish a list of the names so drawn to the sheriff to be summoned, and shall also furnish four other lists, two for the court, one for the plaintiff, and one for the defendant.

"'2. On the day of the return of the special venire, after the sheriff, on order of the court, shall have called the list and ascertained who of them are present in court, the lists for the parties will be given them or their attorneys, showing those jurors who have answered the call; then when the trial is to begin, all the jurors of that venire present, except such as may have been excused by the court, will be called into the box to be questioned of their voir dire, and the court will hear and determine all challenges for cause, if any, and purge the list of the disqualified; then from the list so purged, the plaintiff and defendant, or their attorneys respectively, will select eighteen jurors, to wit, nine each; this selection will be made as follows: the plaintiff will mark on the list nine names, then the defendant will mark nine names; this selection will be so conducted that the jurors selected will not know by whom they are chosen; from this array of eighteen jurors so selected, each side will strike off three names, and the remaining twelve will be the jury to try the cause; should either party decline to participate in the selecting or striking off the names of jurors as above prescribed, the sheriff will perform that duty for him, and should both sides decline the sheriff will do so for both.

"'3. If, after the list has been purged, as provided in paragraph 2, supra, there should remain less than twenty-seven names of qualified jurors from which the eighteen are to be selected as above prescribed, the court will postpone the trial to a convenient time later, and order an additional number of jurors, who will be drawn, summoned, and selected in like manner as above provided, so as to bring the number of qualified jurors from whom the array of eighteen are to be selected up to at least twenty-seven.'

"Thereupon the relators herein, the said St. Louis, Keokuk & Northwestern Railway Company, plaintiff, and the said Knapp-Stout & Co. Company, defendant, filed their respective motions to vacate and annul the order so made as aforesaid by the said James E. Withrow, judge, requiring the jury commissioner to furnish the names of forty-five persons to the sheriff of said court as jurors in said cause, which said motions were, by said court, overruled.

"Thereupon the said St. Louis, Keokuk & Northwestern Railway Company, plaintiff as aforesaid, and the Knapp-Stout & Co. Company, defendant as aforesaid, filed their several and respective motions to quash the said panel of jurors, for the reason that the same had not been selected in pursuance of any statute or valid rule of court, authorizing such selection, which said several motions were, by the said James E. Withrow, judge as aforesaid, overruled and disallowed.

"And thereupon, the said James E. Withrow, judge, announced from the bench, that your relators would in accordance with the rule hereinbefore set out, each be required to select nine persons from the list of names so returned by the sheriff as aforesaid, for the purpose of making a panel of eighteen from which to make their peremptory challenges of three each.

"And thereupon the relators, the said St. Louis, Keokuk & Northwestern Railway Company, and the said Knapp-Stout & Co. Company, declined to proceed further in the selection of a jury for the trial of said cause in which they are respectively plaintiff and defendant, in accordance with the requirements of the said judge, respondent herein, and the said rule so adopted, as aforesaid by the circuit court sitting in general term, for the reason that the same were without authority of law, and in violation of the constitution and statutes of this state.

"Your petitioners further show to this court, that said cause is still pending in the circuit court, and has been passed until Monday, the twenty-first day of this month, and at which time said jurors, illegally selected as aforesaid, have been ordered to return for further proceedings therein, and said respondent, James E. Withrow, judge as aforesaid, has announced his determination to enforce said rules and require the relators herein to select a jury in the said cause, in conformity thereto. Your petitioners herewith exhibit to this court an exemplification under the seal of the said circuit court, and under the hand of the clerk thereof, of the record and proceedings had in the circuit court in said cause, as to the matters stated in this petition.

"Your petitioners further state that the action of the said respondent, and the action proposed to be taken by him in the selection of a jury for the trial of the cause to which the relators herein are parties, are in excess of the jurisdiction and authority of the said circuit court.

"Your petitioners would further state that said cause is one of great moment, both to plaintiff and defendant, and involves according to the contention of defendant, property of great value and damages in a very large sum; that the witnesses in said cause are numerous, and many of them reside at a considerable distance from the city of St. Louis, and can only be made properly available to the respective parties for whom they are witnesses by being personally presented in court; that the trial of said cause, though conducted with the utmost expedition, will, in all probability, occupy a period of from ten days to two weeks; that it is therefore...