The Mayor v. Lyon Et Ux

• Decision Date: 30 September 1882
• Citation: 69 Ga. 577
• Parties: The Mayor, etc., of Cartersville. vs. Lyon et ux.
• Court: Georgia Supreme Court

69 Ga. 577

The Mayor, etc., of Cartersville. vs. Lyon et ux.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1882.

Municipal Corporations. Jurors. Possession. Landlord and Tenant. Constitutional Law. Before Judge Fain. Bartow Superior Court. January Adjourned Term, 1882.

Lyon and wife brought an action for damages against the Mayor, etc., of Cartersville, for entering upon land and carrying away gravel therefrom, and damaging the property by hauling the gravel across it. The case was brought September 14, 1877. It was appealed to the superior court October 1, 1877. On the trial, the evidence as tothe value of the land, the damage done to it, and whether the gravel was taken with the consent of the owner or not, was conflicting. The testimony of the plaintiffs showed that a tenant of theirs was in possession of the property alleged to be damaged.

The jury found for the plaintiffs $50.00. Defendants moved for a new trial, on the following among other grounds:

(1.) Because the court ruled that three of the jurymen, whose names appeared upon the list of traverse jurors from which a jury was to be stricken to try this case, should be stricken from the list, because they were incompetent, residing as they did within the corporate limits of the city of Cartersville, and being tax payers. This was done over objection of defendant's counsel.

(2.) Because the court overruled an oral demurrer to the action, based upon the ground that a justice's court had no jurisdiction to try a case of damages to realty.

(3.) Because the verdict was contrary to law and evidence.

The motion was overruled, and the defendants excepted

J. B. CONYERS, for plaintiffs in error.

TRIPPE & NEEL, for defendants.

Jackson, Chief Justice.

1. The three jurors stricken from the panel of twenty-four, numbers one and two of the regular traverse juries, on the ground that they were citizens of Cartersville, were competent jurors, though that city was defendant. Code 1672(f); acts of 1875, p. 96; 1874, p. 45. This alters the law as it stood when the cases in 7 Ga., 139, and in 46 Ga., 80, were decided. They were stricken over the objection of the city of Cartersville, the plaintiff in error, and under the law, we think that the error requires a new trial, unless the facts demanded the verdict beyond question.

The Code, in §3932, declares that "all equity cases, collateral issues and issuable pleas, etc., in said (superior) courts shall be tried by one or the other of said panels, provided the parties can agree upon a panel to try them, " alluding to panels numbers one and two before mentioned in the section. In the event the parties do not agree, the same section of the Code provides that a jury shall be stricken from these panels. The section further declares that if these panels be incomplete by absence or disqualification of one or more jurors, then, at the request of either party, the two panels shall be filled up to the number of twenty-four jurors, and then the striking shall proceed.

This section is codified from the acts of 1869 and 1878, and it gives clearly the right of trial before the jurors to the number of twelve to be selected from these two panels, unless some jurors thereon are absent or disqualified. Nobody was absent or disqualified, or lawfully excused. Therefore, the jury which tried the case was not the jury the law prescribed, and as the case is a close one on the facts, no one can foresee how much the plaintiff in error may have been hurt. In the case of Winter vs. The Muscogee Railroad Company, 11 Ga., 438, it was held that the failure to fill up the list of grand jurors from which the traverse jury was taken, to eighteen, was error, and a new trial was granted for that among other reasons, though it did not appear that the twelve who did try the...