Louisville & Nashville Railroad v. Messer

165 Ky. 506 | Ky. Ct. App. | 1915

Opinion op the Court by

William Eogers Clay, Commissioner

Granting petition for rehearing and reversing.

Defendant’s supplemental brief, calling our attention to the fact that the jury which tried this case was not properly .empaneled, was not in the record when the case was decided, and the question was not considered by the court. The question is presented by defendant’s petition for'.rehearing.

; It appears that when the case- was .called- for trial, .defendant moved to dischargé the jury for the;,following reasons: 1 The court not only discharged the first regular panel'after one week’s service, but .discharged each subsequent panel after one week’s service, and the jiiry which tried, this case was the fifth jury which had been drawn, summoned and empaneled during the term of court at which this case was tried. . Defendant’s motion to discharge the panel was • overruled. In the recent eases of L. & N. R. Co. & Curt Jones v. Owens and L. & N. R. Co., and Curt Jones v. Parsons, 161 Ky., 557, we held that trial courts were authorized to discharge only.,the regular first panel of the jury after they had served one .week and. empanel another jury, and were without authority to discharge the new jury thus empaneled after a week’s service and empanel another jury for the succeeding week and continue this practice for each week of the term. We further held that parties litigant are entiled to a trial by. a jury 'empaneled in conformity to the statute, and that, where the question was properly, raised, it was prejudicial error to refuse to discharge the jury where the method provided by the statute for empaneling a jury was substantially disregarded.

For the reasons given, the petition for rehearing is granted, the order of affirmance set aside, and the judgment reversed for a new trial consistent, with this, opinion.