Woody v. Chandler

• Decision Date: 23 June 1953
• Docket Number: 8 Div. 87
• Citation: 66 So.2d 463,37 Ala.App. 238
• Parties: WOODY v. CHANDLER.
• Court: Alabama Court of Appeals

Page 463

66 So.2d 463

37 Ala.App. 238

WOODY v. CHANDLER.

8 Div. 87.

Court of Appeals of Alabama.

June 23, 1953.

Claude H. Pipes, Huntsville, for appellant.

Griffin, Ford, Caldwell & Ford, Huntsville, for appellee.

PRICE, Judge.

There was a verdict and judgment in favor of the plaintiff for $278.32 in the court below. Defendant appeals.

Appellant argues for reversal the grounds of the motion for a new trial asserting that defendant was required to strike a jury from a panel of jurors less than twenty-four in number, contrary to the provisions of section 54, Title 30, Code 1940.

The only evidence appearing in the record is that offered in support of the motion for a new trial. As exhibit 1 to the testimony of Mrs. Daye, Clerk of the Circuit Court, defendant introduced his plea of the general issue in short by consent, showing a demand by the defendant for a jury trial. Mrs. Daye testified that on the trial of the cause a jury list containing the names of sixteen jurors was furnished the parties. Defendant offered the list as exhibit 2 to her testimony. This witness testified on cross-examination that she did not think defendant objected to the list and did not recall that anything was said about it and the first time she knew there was any objection to the number of jurors appearing on the list was at the time of the filing of the motion for a new trial.

When a struck jury is demanded in civil cases each party is entitled to a full panel of twenty-four competent jurors. Section 54, Title 30, Code 1940; Morris v. McClellan, 169 Ala. 90, 53 So. 155; Rosenbush Feed Co. v. Garrison, 251 Ala. 245, 37 So.2d 106.

Our courts have held that the refusal of the court to grant a request for a struck jury under Section 54, supra, is not error if the demand is not made until after the organization of the jury for the trial is entered upon. McArthur v. Carrie's Adm'r, 32 Ala. 75; Goodson v. Brothers, 111 Ala. 589, 20 So. 443; Louisville & Nashville R. R. Co. v. Ratliffe, 164 Ala. 147, 51 So. 335. But that the court may, in the exercise of its sound discretion, make an order granting a struck jury after the proper time for making the demand has elapsed. Birmingham Water Works Co. v. Barksdale, 227 Ala. 354, 150 So. 139.

Section 54, Title 30, Code 1940, is as follows:

'In all civil actions triable by jury, either party may demand a struck jury, and must thereupon be furnished by the clerk with a list of twenty-four jurors in attendance upon the court, from which a jury must be obtained by the parties or their attorneys alternately striking one from the list until twelve are stricken off, the party demanding the jury commencing; provided, that in all judicial circuits having not more than two judges, the court shall require to be made two lists of all the jurors in attendance upon the court, who are competent to try the case, and not engaged in the trial of some other case, which list shall...