Stroh v. Hinchman

• Decision Date: 30 October 1877
• Citation: 37 Mich. 490
• Court: Michigan Supreme Court
• Parties: Bernard Stroh and Elon W. Hudson v. Guy F. Hinchman

37 Mich. 490

Bernard Stroh and Elon W. Hudson v. Guy F. Hinchman

Supreme Court of Michigan

October 30, 1877

Submitted October 10, 1877

Error to Superior Court of Detroit. (Cochrane, J.)

Assumpsit. Defendants bring error. Reversed.

Judgment reversed with costs, and a new trial ordered.

Henry M. Duffield and Theodore Romeyn for plaintiffs in error. It is good cause of challenge that a juror's opinion is decided, (Osiander's Case 3 Leigh 780,) is based on the testimony of witnesses (Smith v. Eames 4 Ill. 76), and needs evidence to change it. Cancemi v. People 16 N.Y. 501; Armistead v. Commonwealth 11 Leigh 657.

Meddaugh & Driggs and Ashley Pond for defendant in error.

Cooley C. J. Graves and Campbell, JJ. concurred: Marston, J. did not sit in this case.

OPINION

Cooley, C. J.

Hinchman sued Stroh and Hudson on thirty-eight negotiable promissory notes, thirty-two of which purported to have been made by defendants and endorsed by Richard D. Winsor, three to have been made by Richard D. Winsor and A. B. Hinman and endorsed by defendants, one to have been made by defendants and endorsed by Winsor and Hinman, one to have been made by Hudson and endorsed by Stroh and Winsor, and one to have been made by defendants and endorsed by Winsor and Hubbard Smith. The defendants pleaded separately by different attorneys, and denied on oath the execution of the papers by them respectively.

On the impaneling of the jury a question of much importance arose concerning the right to peremptory challenges. The statute (Comp. L. § 6027) provides that "In all civil cases each party may challenge peremptorily two jurors." In this case one of the defendants challenged peremptorily two jurors; the other defendant then challenged one, but the court overruled the challenge on the ground that the two defendants constituted but one party in the sense of the statute, and their right of peremptory challenge was now exhausted. This ruling has for its support the case of Bibb v. Reid 3 Ala. 88, which appears to be exactly in point. In Stone v. Segur 11 Allen 568 it was also decided that all the persons joined as plaintiffs or defendants in a civil action constitute but one party within the meaning of a similar statute. That was an action of tort, and all the defendants claiming the right had pleaded jointly by the same counsel. The court in assigning reasons for their construction of the statute say: "The bias or prejudice against which it was intended to protect parties was not so much that which might arise in the mind of a juror from personal dislike or hatred of individuals who might happen to be plaintiffs or defendants in an action, but rather that which might relate to or grow out of the subject matter in controversy in a suit. This object would be fully attained by giving to the plaintiffs and defendants in an action, without reference to the number of persons joined on one side or the other, each the right to challenge two persons peremptorily. By the exercise of this right each party to the suit would be enabled to guard against any undue partiality arising out of the subject matter in issue to the extent of the two challenges allowed by the statute." The same question arose in Sodousky v. McGee 27 Ky. 267, 4 J.J. Marsh. 267 and was decided the same way. The court say of the defendants, "Whether they pleaded jointly or severally they all constituted but one party, and therefore the whole of them had a right to only three peremptory challenges. In criminal cases, if several persons be tried on a joint indictment by the same jury, each has a separate and independent right to his challenges, whether peremptory or for cause; because, although the trial is joint in form, it is in substance and effect several. The verdict must be several. Each must be punished according to his own guilt, and not according to that of another; and the punishment is individual and several, not joint. There can be no contribution, no substitution. Hence to avoid the inconveniences which would result from separate challenges in the same trial, it is the practice of courts of criminal jurisdiction to order separate trials, unless the parties jointly indicted will waive their right to peremptory challenges. But none of these reasons apply to a joint trial in a suit for trespass, or in any trial in which the parties are responsible civilizer, and all who shall be found guilty are contributory."

Now a rule is to be judged by the reasons that may be assigned for it; and judging this supposed statutory rule by that standard, the conclusion of the court in Stone v. Segur, where confined to the facts of that case, seems entirely sound and reasonable. There the defendants had united on one issue, presented by the same counsel, and had contented themselves with a joint defense. They were consequently by their own voluntary action but one party before the court, and had but one mouthpiece. Any challenge made on behalf of one must necessarily be on behalf of the other also, and when the statutory number had been made the right of each was exhausted, even though all had been made at the suggestion of one of the defendants only. It was immaterial who had suggested them when they were thus made in the name and on behalf of all. And if the court was right in supposing that the bias or prejudice that might grow out of the subject in controversy was what the legislature had in view in giving peremptory challenges, then the defendants in the case must be supposed to have had the full benefit of the statutory privilege, since any bias or prejudice that could affect one must in the same degree affect the other also.

In a case like the present it is different. Stroh and Hudson are here sued on several different classes of paper, on some of which their positions in respect to each other and to third parties were the same, while on others they were different. In most cases their positions appear to be those of principals, with others as sureties, but in some they are sureties for others, and in one Stroh is surety for Hudson. The two have not only pleaded separately by different counsel, but it is legally supposable that each may have a distinct and separate defense, and that the jury may return a verdict for one and against the other on some of the notes counted on. It could not, therefore, be assumed by the court that the controversy in respect to all the notes would be the same as between the plaintiff and each of the defendants,--that the issue made by the evidence would be the same, and subject to the same and no other prejudice. On the contrary, to employ the language of the court in Sodousky v. McGee, the trial, though joint in form, must in substance and effect be several, the verdict is some contingencies must be several, the judgment against each must be according to the extent of his liability, and not according to that of another, the liability on some of the paper being several, although the statute permits a joint action. If, therefore, reasons were correctly assigned in Sodousky v. McGee why the defendants in some cases should be considered one party only, and not in others, this case is one in which they are entitled to be considered as two.

But the facts which this record discloses enable us to test this statute in a way to show how utterly the reasons assigned for considering all the defendants as one party only must fail in some cases. As Winsor's name was on every one of the thirty-eight notes, the plaintiff had the same right to join him as a defendant that he had to join these defendants in one suit. Now the record discloses that the theory of the plaintiff was, that Stroh and Hudson never in person signed or endorsed any of the paper, but that their names were put to all the notes, either as makers or endorsers, by Richard D. Winsor, who wrote them in imitation of genuine signatures but under circumstances which made him their agent for the purpose. This theory he sought to support by the evidence of Winsor, and in the Superior Court was successful in so doing. Now had Winsor been united as a defendant, it is not only manifest that his interest would have been antagonistic to that of the other defendants, but it was such that any bias or prejudice against the other defendants, growing out of their connection with the paper, and their repudiation of it, must naturally lead the parties indulging it to sympathize not only with the plaintiffs, but with Winsor also. Suppose then that the three had been sued together and had pleaded separately by different counsel, how could any joint right of peremptory challenge have been exercised? The court, of course, when the jury is being empaneled, cannot know what the evidence is to disclose, or how prejudices are likely to affect the issue; it could only know that three defendants severally were contesting their liability on the paper in suit. It can not be, we think, that all the defendants would be compelled to agree upon a challenge before it would be allowed; if one challenges where the others are not disposed to do so, he is deprived of his statutory right if his challenge is not recognized. But suppose each of the three defendants demand the right to a challenge, and each fix upon different persons to set aside, what authority has the court to apportion the right, or upon what principle could it be done if it had the authority? The man Hudson desired to retain might be the one Stroh desired to set aside, and the wishes of Winsor would be almost certain to run counter to those of both the others. If the privilege of challenging one were assigned, say, to Hudson, and of another to Stroh, it would be preposterous to say that Winsor had been allowed the privilege at all. But the result would be still more extraordinary...