Wallace v. Jameson

• Decision Date: 04 January 1897
• Citation: 36 A. 142,179 Pa. 98
• Parties: William D. Wallace v. David Jameson, Sarah G. Treadwell, and Alliene W. Treadwell, Appellants
• Court: Pennsylvania Supreme Court

36 A. 142

179 Pa. 98

William D. Wallace v. David Jameson, Sarah G. Treadwell, and Alliene W. Treadwell, Appellants

No.

Supreme Court of Pennsylvania

January 4, 1897

Argued October 13, 1896

Appeal, No. 117, Oct. T., 1896, by defendants, from judgment of C.P., Lawrence County, Dec. Term, 1894, No. 54, on verdict for plaintiff. Affirmed.

Trespass for libel.

It appeared from the record that suit was begun on October 25 1894. Subsequently the plaintiff was elected president judge of Lawrence county.

April 27, 1896, the case was on trial list.

Judge Wallace made the following order:

"Now May 1, 1896, I hereby certify that I am disqualified from hearing the above case, and direct that Hon. S. H. Miller, of the 35th district, being the nearest president judge, hear the same, and fix Monday, May 25, 1896, at 1:30 p.m., as the time for hearing the said case."

On May 25, 1896, the defendants presented to the court (WALLACE P.J., presiding) a petition setting forth "that this action is for the recovery of damages by the said plaintiff from the said defendant for an alleged libel published in The New Castle News: And your petitioners further show that the said plaintiff, William D. Wallace, is at present the president judge of the fifty-third judicial district of the state of Pennsylvania, composed of the county of Lawrence, and the only law judge of said district, and who is by law required to try and hear the above cause, and that he is personally interested in the event of the same, and in the question to be determined thereby, he being the plaintiff and the only plaintiff in this cause.

"Wherefore your petitioners pray for a change of venue and your petitioners will ever pray, etc."

The court made this order:

"May 25, 1896, the within petition presented to me in open court, and the same directed to be presented before Hon. S. H. Miller, president judge of 35th district, to whom this case was certified for trial." [1]

Subsequently MILLER, P.J., overruled the motion. [2]

On May 25, 1896, the defendants filed the following plea, with the proper affidavit:

(1.) Defendants have petitioned court for a change of venue, which under the constitution and laws of this commonwealth the court is bound to allow, and being so bound the court has no right to proceed to trial of the cause. (2.) Defendants having moved for a change of venue the court, as constituted, with Hon. S. H. Miller as president judge of the 35th judicial district on the bench, is not constituted so as to legally try this cause. (3.) Hon. S. H. Miller is disqualified to try this case for the reason that he is not an impartial, unprejudiced and indifferent judge with respect to the matters in issue in this suit. That he has written a letter to one of the defendants in which he has expressed an opinion on three questions of law and fact that will be and are in issue, and in one question of law and fact in issue has stated in said letter that he knows the conclusion of the issue, and his opinion and knowledge so expressed are against defendants' interests, and that the questions of law and fact and on which he has so expressed himself, are material in this case.

Evidence in support of the plea was the following letter by S. H. Miller, the judge, to one of defendants:

"NEW CASTLE, Pa., May 4th, 1895.

"MR. DAVID JAMESON:

"DEAR SIR: As the friend of your father, Mr. Frank Allen, I desire to call your attention to the character of the articles indulged in by your paper -- The News -- toward me. I am informed by citizens of New Castle, who are in position to know, that you can, and at times do absolutely control the columns of The News, and direct what shall and shall not appear in its columns. I am quite sure you read what appeared in The News last March relative to my judicial action in the Richardson case, and I presume you indorsed the style, language, words and substance used by the person who wrote the several articles.

"I have had but little acquaintance with you, and none whatever with the person who writes the articles, but I had supposed that you would not permit your columns to be used to vilify me because you disliked someone else.

"I wish you to know that I believe you could put a stop to this if you wished to.

"I enclose clipping from editorial of May 2. Also, call your attention to clipping in May 3, and ask you to re-read the several articles which appeared in March.

"Very truly,

"S. H. MILLER."

The court overruled the plea and granted an exception for defendants. [3]

The defendants then filed a motion in challenge to the array of jurors; which motion, evidence and ruling thereon are as follows:

And now, May 25, 1896, the defendants in the above cause challenge the array of jurors in said court, and in support of said challenge assign the following reasons:

That the jury wheel in and for said county, from which the panel of traverse jurors was drawn in pursuance of the venire issued from said court, commanding the sheriff and the jury commissioners of said county to impanel a jury of forty-two jurors for the trial of issues at May term, 1896, being the present session of said court, was filled in January, 1896, with the names of persons selected alternately by the jury commissioners of said county and the president judge of said county, the said William D. Wallace, plaintiff in this case; which said case was then at issue, pending and undetermined in said county, as jurors in and for the several courts of said county, for the year 1896. Wherefore the said traverse jurors in the panel for the trial of the causes now upon the list for trial at this term, including the above entitled cause, being so selected by the said jury commissioners and the president judge of the said court, he, the said William D. Wallace, being the plaintiff in this cause, the said jurors are, therefore, not proper, competent and qualified jurors under the law for the trial of said cause.

Also, for the reason that the list containing the names, occupation and residence of every person placed in said jury wheel for said year of 1896, filed of record in the office of the prothonotary of the court of common pleas of said county was not certified by the said president judge.

All of which matters and facts appear by the records of said court, and the defendants therefore pray that this their challenge may be sustained.

Order of court for filling jury wheel for the year 1896, was as follows:

"LAWRENCE COUNTY, SS:

"Now, December, 1895, it is ordered by the court of common pleas of said county, that the jury commissioners and president judge of said county, or a majority of them, shall meet on January 6, 1896, being the first Monday of said last named month, to select, and shall select 500 names including also the names now in the jury wheel, if the persons named be living and resident in said county and proper persons for jury service; sober, intelligent and judicious persons, in the manner required by law from the whole qualified electors in said county at large to serve as jurors in the several courts of said county for the ensuing year, beginning on January 1, A.D. 1896, and in the mode and manner now directed by law, prepare and place the names of the persons so selected in the proper jury wheel, to the end that the persons so selected may be duly drawn therefrom, and summoned to serve as jurors in the several courts of said county."

The certificate of jury commissioners was as follows:

"LAWRENCE COUNTY, SS:

"In pursuance of the order of the court of common pleas of this county, designating the number of jurors to serve for the year 1896, according to law, we, Samuel Brandon and David R. Hill, jury commissioners, and William D. Wallace, president judge, after having first been duly sworn according to law, did meet in the court house in the city of New Castle, Pa., on Monday, January 6, A.D., 1896, at 9 o'clock, and did proceed to select, as required by law, from the number of qualified voters of said county, five hundred sober, intelligent and judicious persons to serve as jurors in the several courts during the year, A.D., 1896, whose names, occupations and places of abode were written on slips of paper, and the same duly proven and placed in the county jury wheel, and said wheel locked and sealed according to law, and the key thereof placed in the possession of William Becker, Esq., high sheriff of said county, the wheel itself remaining in the possession of the jury commissioners, and being put for safe keeping in the vault of the office of the commissioners. A list of the names of persons so chosen as jurors, with the occupation and residences, also each one numbered to correspond with the number on the side slips as within in this book on the pages immediately preceding this return, Judge William D. Wallace being present a part of the time occupied with said work.

"In witness whereof we have hereunto subscribed our names and affixed our seals this 28th day of January, 1896.

"S. BRANDON, Jury Commissioner. [SEAL.]

"D. R. HILL, Jury Commissioner." [SEAL.]

"Attest:

"WICK W. WOODS, Clerk.

Ruling of Court: The motion, therefore, to challenge the array of jurors is overruled and an exception sealed for the defendants. [4]

On May 26, 1896, the defendants filed the following special plea:

Now, May 26, 1896, before jury is sworn, defendants, by their attorneys, plead specially to the jurisdiction of this court to proceed in the trial of this cause, and in support thereof show that a writ of certiorari has been issued by the Supreme Court and filed in this case removing the record in this case out of this court to the Supreme Court.

Ruling: The plea is refused and an exception sealed for defendants. [5]

At the...