Amos v. Superior Court

MYERS, C. J.

This is an application for a peremptory writ of prohibition to restrain the respondent court and the judges thereof from proceeding with the trial of an action pending in said court before a jury to be selected from a special venire which was drawn for the purpose of the trial of that action. The pending action is one to recover damages for personal injuries growing out of a street-car accident. The ease haying been regularly set down for trial before a jury, the presiding judge made an order directing the clerk of the court to issue and deliver to the sheriff a writ for a jury venire from which jurors were to be impaneled to try the case. This was evidently intended to be in compliance with section 226 of the Code of Civil Procedure, which provides:

“Whenever jurors are not drawn or summoned to attend any court of record or session thereof, or a sufficient number of jurors fail to appear, such court may order a sufficient number to be forthwith drawn and summoned to attend the court, or it may,

by m order entered m its minutes,

direct the sheriff, or an elisor chosen by the court forthwith to summon so many good and lawful jurors, as may be required, and in either ease such jurors must be summoned in the manner provided in the preceding section.” (Italics added.)

The italicized words in the foregoing quotation are the ones upon which petitioners rest their contention that the respondent court is without jurisdiction to proceed. The clerk, through inadvertence and oversight, failed to make entry of the order in the minutes. However, he did issue the writ and delivered the same to the sheriff as the order contemplated. The sheriff served the same and on the day the ease was called for trial the jurors were in attendance. The names of twelve prospective jurors were drawn, who

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took their places in the box and were sworn to answer questions as to their qualifications. Counsel for plaintiffs (petitioners herein) then examined the prospective jurors in the box as to their general qualifications, and, after such examination, passed them as to general qualifications, after which counsel for defendant examined and passed them as to general qualifications. Then counsel for plaintiffs examined them individually and at length respecting possible grounds for individual challenge, challenged one of them for cause, the challenge was allowed, and that juror was excused and another one drawn in his place. After concluding the examination of the individual jurors for cause, counsel for plaintiffs then interposed a challenge to the entire panel upon the ground that they were not selected or summoned in the manner required by law because of the circumstance that the order for the drawing of the special venire had not been entered in the minutes, and because of the further circumstance that the venire as drawn and summoned consisted of but twenty jurors, only fifteen of whom were present in court at the commencement of the trial. The trial court denied said challenge and objection; whereupon the plaintiffs in said action filed the present petition for a writ of prohibition to restrain the respondent court and the judges thereof from proceeding with the trial of petitioners’ said action before such purported jury.