39 Mo. 407 | Mo. | 1867
delivered the opinion of the court.
This was an action instituted before a justice of the peace in Cole county, for the recovery of a mare alleged in the complaint to belong to the plaintiffs. Judgment was rendered in the justice’s court for plaintiffs, and defendants appealed to the Circuit Court, where, upon a trial anew, plaintiffs obtained a verdict, and judgment was entered thereon. The defendants, after an unsuccessful motion for a new trial and in arrest of judgment, sued out their writ of error to this court.
When the cause was called in the Circuit Court, both parties announced themselves ready for trial, and the court then ordered jurors to be sworn to answer questions touching their competency. When the number of twelve competent jurors had been obtained, the list was handed to the plaintiffs’ counsel, who, after examining the same, struck three names therefrom, and then handed the list over to the defendants’ counsel, who, after an inspection thereof, demanded more jurors, saying that he had not noticed that there were only twelve jurors sworn. The court refused to have other persons sworn, alleging as a reason therefor that twelve jurors had been sworn and interrogated and found to be competent, and that defendants’ counsel had not made any demand for more j urors until after the above proceedings were had ; to which action of the court in refusing to have more jurors sworn and empannelled the defendants’ counsel at the time excepted. The parties then proceeded to trial with a jury composed of six persons.
Upon the trial, the evidence went to show'that the value of the mare in controversy was seventy-five or.eighty dollars, and the counsel for the defendants then moved to' dismiss the cause because the justice of the peace had np jurisdiction; this motion the court overruled, and to its decision in
It has been held that, in all trials in courts of record, it is the constitutional right of a party to demand a jury of twelve men; and that, if no exceptions are taken to the action of the court in proceeding to trial with a less number, the party may still take advantage of the error, by a motion in arrest of judgment. The defect will not be considered as waived, or consent presumed, unless entered of record — Vaughan v. Scade, 30 Mo. 600.
The identical question here presented recently came before this court in the case of Brown v. Hann. & St. Jo. R.R. Co., 37 Mo. 298, which was an appeal from the court of a justice of the peace, and no objection was made or point reserved, on the trial in the Circuit Court, on the ground of the number of jurors, but the party relied wholly on his motion in arrest, and we sustained the position on the authority of the previous decisions of' this court. It is evident that the defendants neither waived their objections to the number of tlxe jury, nor entered their consent of record; for, as soon as
We cannot refrain from censuring the course which made it necessary to bring this case here. Before the jury was empannelled,- or sworn to try the case, the defendants insisted upon a legal jury ; how easy would it have been for the court to have complied with their request and avoided all difficulty. As it is, we are compelled to reverse the.case, when at the same time it appears that the verdict was well warranted by the evidence.
Reversed and remanded.
