Jacobs v. Elliott

Searls, C. This is a proceeding under a writ of mandate, sued out by appellant to command respondent, as county clerk of the county of Merced, to issue to him, the said appellant, a certificate showing and certifying to his attendance in and upon the superior court in and for said county of Merced as a trial juror, and that he is entitled to pay for fifty-one days, and to like pay for one mile travel as such juror.

[319]The cause was submitted upon the petition, answer, and agreed statement upon which the court below found in favor of respondent, and entered judgment discharging an alternative writ of mandate theretofore issued in the cause, and awarding costs against the appellant.

The appeal is from the judgment discharging the writ.

The petitioner was in all respects competent to serve as a trial juror in the county of Merced, and was regularly drawn, summoned, and on the twenty-third day of March, 1891, appeared as a juror in the superior court in and for said county of Merced, and served as such juror for three days, viz., until and including March 25, 1891.

On said last-mentioned day petitioner and other jurors in attendance on said court as jurors were, by order of the court, duly entered, excused from attendance, and by subsequent like orders, of all of which petitioner was duly notified, he was excused from, and did not attend as or serve as a juror until May 19,1891, when he duly appeared and served for two days, at the end of which time he was finally discharged.

The question to he determined is this: Was petitioner, under the law, entitled to pay for the fifty-one days intervening between his first appearance and his final discharge or only for the five days of his actual service?

The superior courts of the several counties of the state are required, in the month of January in each year, to make an order designating the estimated number of trial jurors required for the transaction of the business of the court, and the trial of causes therein for the ensuing year, and thereupon the supervisors are required to select a list of persons competent to serve, as required by the court, and place the same in the' possession of the county clerk, who shall place the names upon separate pieces of paper, fold and place them in a box to be called the “trial jury-box.”

“The persons whose names are so returned shall be