State v. McHatton

• Decision Date: 07 February 1891
• Citation: 25 P. 1046,10 Mont. 370
• Parties: STATE ex rel. ROOT et al. v. McHATTON.
• Court: Montana Supreme Court

25 P. 1046

10 Mont. 370

STATE ex rel. ROOT et al. v. McHATTON.

Supreme Court of Montana

February 7, 1891

Application for writs of prohibition and mandamus.

Toole & Wallace, MeConnell & Clayberg, Nathaniel Myiers, and Robert G. Ingersoll, for Petitioners.

BLAKE C.J.

This is an application to this court upon the Part of Henty A. Root and Maria Cummings for a peremptory writ of mandate to compel the judge of the district court of the second judicial district of the state, in and for the county of Silver Bow to appoint three persons to serve as a commission in selecting a petit jury. The same parties have also filed an application for a peremptory writ of prohibition to command the said judge to desist and refrain from any further proceedings in the matter of the Probate on a Certain instrument purporting to be the last Will and testament of Andrew J. Davis, deceased, until otherwise ordered by this court. The affidavits of the realtors embrace, in substance the same allegations, and the returns of the respondent are Similar, So that a determination of the issues in one proceeding necessarily controls both judgments. The realtors have submitted two motions to strike from the returns certain portions thereof, which will not be considered by themselves because they must stand or fall with the main propositions to be examined. There is no controversy respecting the facts and the sole question before us must be solved by the construction of the constitution and statutes relating to the impaneling of a jury in the district courts, which exercise jurisdiction in a single county. It will not be profitable to set forth fully the statements of the affidavits and returns, but the material facts appearing therein should be presented. Andrew J. Davis died March 11,1890, in Butte, county of Silver Bow. aforesaid, and left an estate exceeding in value the sum of $8,000,000. Said Root and cummings and others are heirs at law of the deceased. John A. Davis, a brother of the deceased, Produced, to said district court, July 24, 1890, a paper purporting to be the will of the deceased, and to have been executed in the State of Iowa, July 22, 1866, and by which the said estate, With the exception of some small annuities, Was bequeathed to the said Davis. Said Root and Cummings within the will in the manner required by law. The issues of fact which were thereby raised were settled October 23, 1890, and the court on December 20, 1891. The contestants filed, January 29, 1891, in the court, their demand in writing to have these issues tried by jury. The panel of trial jurors was obtained and drawn in pursuance of a certain order of the court made December 20, 1890, which is as follows: "In the matter of the trial jury. This day it appearing to the court that the regular panel of trial jurors herein were on December 17, 1890, discharged from further attendance upon court; and that there is at this time no trial jury in attendance upon the court; and that a jury is necessary, there being several causes pending and set for trial: It is ordered that the clerk of this court, or his deputy, under the direction of the judge thereof, prepare a list of names of forty persons, competent to serve as trial jurors, and include the names of the persons so selected in a venire, directed to the sheriff of the county of Silver Bow, commanding him to summon the persons whose names appear before this court on Monday, January 19, 1891, at 10 o'clock A. M. JOHN J. McHATTON, judge." The population of said county of Silver Bow exceeds 10,000. The contestants demanded, January 31, 1891, of the court the appointment of jury commissioners and that a jury should be drawn in accordance with the provisions of the act relating to the drawing of jurors, approved March 14, 1889. They also moved to quash and set aside the venire, and discharge the said panel of petit jurors; but the court refused to appoint said commissioners, and overruled the motion. The district court for the county of Silver Bow, under the territorial government, adjourned sine die, November 12, 1889, and no order for the appointment of a jury commission was made during the term which then expired. Since the organization of the district court within the state, no petit jury has been impaneled through the action of any jury commission.

The respondent says in his return that "the district court of the state of the second judicial district has no terms or regular stated provisions of time for its sitting, but is always open, and there are continual sessions as in the constitution provided, and there has been no time at which jury commissioners could be appointed by this defendant; and the first section of said act of March 14, 1889, has by the provisions of the constitution been superseded and annulled, so far as applicable to said district court." The respondent also alleges that he has followed the requirements of the fifteenth section of said act, which is in these words: "If during a term of the district court a lawful petit jury is not present, and one is wanted, it shall be lawful for the judge of the court, and the clerk of such court, or his deputy, under the direction of the judge, to prepare a list of the names of at least twenty-four competent persons, to serve as trial jurors for such term. After such list is so prepared, it shall be the duty of the clerk of the court, or his deputy, to issue a venire containing the names of the persons selected as aforesaid, and to place the same in the hands of the sheriff, who shall thereupon summon such persons to appear before such court upon the day named in such venire, and fixed by the judge of such court. The persons so drawn and summoned, and not excused by the court, shall constitute the panel of petit jurors for such term. If, during the progress of any trial of any cause in such court where a jury has been drawn as in this section provided, it shall become necessary for any cause to summon additional jurors, such additional jurors shall be drawn and summoned by an open venire, in accordance with the provisions of section two hundred and fifty-five of the first division of the Complied Laws of Montana, and the acts amendatory thereto." St. 16th Sess. 168. The first section of the act which is mentioned in the return is as follows: "It shall be the duty of the judge of the district court, at each regular term that shall be hold en in any county, to appoint three persons of honor and respectability, not parties litigant to any matter pending in such court, and who shall have resided in such county at least two years next preceding, and shall also possess the qualification required by law for jurors, to constitute jointly, along with the judge of probate of said county and the county clerk, a commission to select a grand and petit jury, whose duty it shall be to serve at the next regular term of said court in each county." St. 16th Sess. 166. The manner in which this commission shall discharge its duty is carefully defined, and the fifth section of the act should be noticed in this inquiry: "The jury commissioners for such county shall then proceed to draw a petit jury for the next ensuing term of court, in manner following: In any county where the population exceeds ten thousand, such commissioners shall select the names of three hundred persons lawfully qualified to serve as jurors, from the county assessor's books of the county; *** and the names of the persons so selected, after being written on separate slips of paper, shall be deposited in a box to be provided for such purpose, and well shaken up, and from the names so deposited the jury commissioners shall alternately draw the names of thirty persons, who shall be summoned as trial jurors for the next ensuing term of such district court." St. 16th Sess. 166. The particular steps which must be taken after these services have been performed are pointed out in other paragraphs of the law, which do not affect the discussion.

It must be admitted that the statute regarding the appointment of a jury commission was enforced throughout the territory, and that there is no difficulty in carrying into effect its provisions in the judicial districts of the state which comprise more than one county. But the respondent maintains that there exists in his district an insurmountable obstacle to its execution, which has been created by this section of the constitution: "The district court in each county which is a judicial district by itself shall always be open for the transaction of business, except on legal holidays and non-judicial days. In each district where two or more counties are united, until otherwise provided by law, the judges of such...