Young v. Morrison

• Decision Date: 04 June 1923
• Docket Number: 21
• Parties: YOUNG v. MORRISON
• Court: Arkansas Supreme Court

251 S.W. 869

159 Ark. 270

YOUNG v. MORRISON

No. 21

Supreme Court of Arkansas

June 4, 1923

Appeal from Miller Circuit Court; George R. Haynie, Judge; affirmed.

Judgment affirmed.

David C. Arnold and John N. Cook, for appellant.

The court erred in refusing to grant appellant a panel, the clerk of the court, who had made up the jury list, being the party defendant. Secs. 6383-4, Crawford & Moses' Digest; 48 F 148; 49 F. 347; 49 F. 359. Statute is mandatory. 157 U.S 348.

Pratt P. Bacon and Louis Josephs, for appellees.

The procedure for selecting the jury was a virtual compliance with the law, and the cases cited by appellant are not applicable to the case made nor controlling herein. Appellant was in no way prejudiced by the method of selecting the jury. 60 Ark. 481; 97 Ark. 226; 128 Ark. 594. Burden on appellant to show prejudicial error. 150 Ark. 508; 139 Ark. 408. Appellee's consenting to selection of the jury by calling the names from the bottom of list of 24 waived request for drawn jury. 134 Ark. 268. The judgment is right on the whole case, and should be affirmed. 62 Ark. 228; 141 Ark. 540; 135 Ark. 559.

OPINION

WOOD, J.

This action was instituted by the appellant against O. P. Morrison and John T. Davis. The appellant alleged that Morrison executed a note to appellant in the sum of $ 1,652.68, and that Davis indorsed the note; that the note was past due, and that no part thereof had been paid. No service was had on Morrison.

On June 12, 1922, the appellee, Davis, answered and denied that he indorsed the note at the time same was executed and delivered to the appellant. He averred that he indorsed the note at the request of the appellant, and solely for his accommodation and not for the purpose of guaranteeing the payment thereof, but to enable the appellant to obtain an extension of time on his past due indebtedness to the Murray Gin Company.

The cause came on for trial on the 20th day of June, and the bill of exceptions states the following: "* * * the plaintiff appearing by D. C. Arnold, his attorney, and the defendant by his attorney, Louis Josephs, and this cause is regularly reached upon the docket and called for trial. Before the jury was selected and list thereof furnished the parties, the plaintiff stated to the court that the defendant, John T. Davis, is the clerk of this court, and has prepared the list of eighteen names from which the jury to try this cause is to be selected, and moves the court to grant a panel in order that the jurors trying this cause should be drawn according to the provisions of law found in §§ 6383 and 6384 of Crawford & Moses' Digest. The court refused to grant the said motion, and overruled said motion for a drawn jury; to which the plaintiff at the time excepted and asked that his exceptions be noted of record, which is accordingly done. The court then took the list of jurors, and asked plaintiff's counsel if he desired the court to call from the top or bottom of the list as prepared by the clerk, whereupon plaintiff's counsel requested the court to call the jurors from the bottom of the list, which was done. Thereupon the plaintiff was required to go to trial before a jury of twelve men selected from the list of eighteen names of jurors from the regular panel, said list of eighteen names of jurors from the regular panel having been prepared by said defendant, John T. Davis, in the usual manner, the said John T. Davis being the clerk of this court, upon which said list each of the parties made three peremptory challenges."

The cause was submitted to the jury thus formed. The trial resulted in a verdict and judgment in favor of the appellee, Davis, from which judgment is this appeal.

The only question presented by the appellant for our consideration is whether or not the court erred in the manner of forming the jury. The appellee contends that there would have been no reversible error even if the court had refused a jury trial, under the undisputed evidence. But we find that no reversible error was committed by the trial court in the manner of forming the jury, and it is therefore unnecessary to consider any other issue. Sec. 6383 of C. & M. Digest provides as follows: "If either party shall desire a panel, the court shall cause the names of twenty-four competent jurors, written upon separate slips of paper, to be placed in a box to be kept for that purpose, from which the names of eighteen shall be drawn, and entered on a list in the order in which they were drawn, and numbered." Sec. 6384 provides as follows: "Each party shall be furnished with a copy of said list, from which each may strike the names of three jurors, and return the list so struck to the judge, who shall strike from the original list the names so stricken from the copies, and the first twelve names remaining on said original list shall constitute the jury."

Sec 6385 provides: "Before the drawing of the list above mentioned, the court shall decide all challenges for cause which are presented, and, if there are not twenty-four competent jurors, bystanders shall be summoned, as hereinbefore provided, until the requisite...