70 Tenn. 726 | Tenn. | 1879
delivered the opinion of the court.
This action was to recover the value of a horse killed by the defendant’s road; verdict and judgment for the defendant. The plaintiff’s motion for new trial being refused, he took a bill of exceptions and' appealed in error.
The first error assigned is, that the court below, upon defendant’s motion and over the plaintiff’s objection, ordered the empanneling of a special jury. Sec. 4029 of the Code is as follows: “On motion of either party in any civil action, a special jury may be ordered and summoned if, in the opinion of the court, it is proper, the additional cost to be taxed to the losing party.”
It is argued that this section only contemplates
The application for change of venue was refused, Out the motion for a special jury alloAved, and it Avas probably intended by the Circuit Judge to a Amid the effect of the supposed prejudice, if any existed; -at any
Sec. 3997 of the Code is as follows: “So also when special juries are allowed by law, the sheriff shall summon the jurors from the body of the county in the manner prescribed in sec. 3993.” Sec. 3993 provides that “if the county court fail to nominate, or the persons nominated fail to attend, the court shall designate other good and lawful men, and direct the sheriff to summon them as jurors, and the persons so summoned shall act as such.” This section clearly gives the judge the power in the given case to designate the jurors, and as section 3997 provides that the special jurors shall be summoned in the same manner as provided in sec. 3993, it follows that the judge had the power to designate the special jurors. We had this question very ably argued at Jackson a few years since; and the danger of allowing 'a circuit judge to select jurors was earnestly pressed upon us, but we held that the judge might designate the jurors when completing a pannel from the by-standers under sec. 4030 of the Code, and that the purity of the jury box was as safe in the hands of a circuit, judge as a sheriff. The question is one of power, and if the law devolved the duty upon one officer alone, it could not be exercised by the other. We are, however, satisfied with our holding, and the conclusion is strengthened by sec. 4000 of the Code, which authorizes the court to punish the sheriff for contempt for knowingly
We have also been furnished with an earnest argument to show that the evidence set out in the bill of exceptions does not sustain the verdict, but under the rule applicable in this court it is manifest that the verdict is sustained.
It is finally argued that it was error to charge the plaintiff with the costs of the special jury; that this part of the act is unconstitutional, but we have held otherwise.
The iudgment will be affirmed.