Welcome Pettis and others vs. Town of Pomfret

*WINDHAM COUNTY, OCTOBER TERM, 1859. Present, Stores, C. J., Hinman, Ellswoeth, and Sanford, Js. Welcome Pettis and others vs. Town of Pomfret. Under the statute (Rev. Stat., tit. 1, § 110,) which provides that “ on the trial of every civil action each party shall have the right to challenge two jurors peremptorily,” a party to a proceeding for the reassessment of damages for land taken for a public highway, by a jury of six disinterested electors, under the 25th section of the act with regard to highways, has the right of peremptory challenge. Relationship on the part of one of the jurors in such a proceeding, to a resident and tax payer of the town which is the defendant in the highway petition, is not a disqualification of such juror. Highway petition. A committee having laid out the highway, assessed the damages of one Greorge Rickard, over whose land a part of the road was laid, at $226. Rickard, moved in the superior court for a jury of six disinterested electors to reassess the damages, under the .provisions of the statute on the subject. (Rev. Stat., tit. 24, § 25.) A jury was summoned, who heard the parties, and reassessed the damages at $220. Upon their report being returned to the court, Rickard remonstrated against its acceptance, on the ground that one of the jurors was related, as brother-in-law by marriage, to a resident and tax-payer of the town of Pomfret, (the defendant in the cause, and which would have to pay the damages assessed,) for which cause the remonstrant had challenged, but the challenge had been dis- [ *567 ] regarded ; and on the further ground that he *had at the hearing peremptorily challenged the same juror, but the challenge had been disregarded and the juror had set upon the hearing and had assisted to find the verdict. The petitioners demurred to the remonstrance, and the questions of law arising on the demurrer were reserved for the advice of this court. Carpenter and Phillips, in support of the demurrer. 1. Rickard was not entitled to a peremptory challenge. The proceeding was not a “ civil action,” “ on trial,” within the meaning of the act, Rev. Stat., tit. 1, § 110. A jury for the assessment of highway damages is such only in name, but is in fact a committee. In such a proceeding there is no court to decide questions arising upon the challenge of jurors and order the return of talesmen. The case of Quinebaug Bank v. Tarbox, 20 Conn., 510, goes upon the ground that there was a court to which to make the challenge. A. challenge of a juror must be made to the court. 1 Swift Dig., 738. The jury in this case was not called upon to try a cause. There was no question of right or fact to be settled by a verdiA, but. simply an estimate or assessment of damages to be returned to the sheriff in a report. A jury proper is required to keep its verdict secret until delivered up in court. A jury to reassess damages is placed under no such restriction. A jury proper is sworn “ well and truly to try the issue or issues,” &c. A jury to reassess damages is sworn “ to make a just and impartial estimate of the damages.” Rev. Stat., tit. 39, § 6. 2. The relationship between the juror and one of the inhabitants of Pomfret, was not a disqualification. It is not mentioned in the statute as one of the disqualifications of jurors in such proceedings. Rev. Stat., tit. 24, § 26. Nettleton v. Nettleton, 17 Conn., 542. Nor is it a disqualification of a juror by the common law of this state. Kilbourn v. The State, 9 Conn., 560. Groton v. Hurlbut, 22 id., 178. Besides, there is no tribunal to which the exception can be taken. It would be absurd to take it to the jurors themselves, and there is no provision for taking it to the sheriff, and for the summoning of other jurors if the exception is sustained; and the proceeding is not before the court, so as to admit of the objection being made before the judge. Further, jurors under this statute are not judges, so as to be subject to the disqualifications that affect judicial officers. Betts v. New Hartford, 25 Conn., 180. Penrose v. Johnson, contra. 1. Rickard had the right peremptorily to challenge two of the jurors. It is a right given to parties on the trial of every civil action. Rev. Stat., tit. 1, § 110. His appeal from the assessment of damages by the committee, and his application for a jury to reassess the damages, was a “ civil action.” It was “ the lawful demand of one’s right.” 3 Bla. Com., 116. The exercise of this right of peremptory challenge is not confined to cases in the superior court, but extends to proceedings on summary process, and forcible entry and detainer, Quinebaug Bank v. Tarbox, 20 Conn., 510. Miner v. Brown, id., 519. But if it was confined to cases in the superior court, this might well be said to be a proceeding in that court. It is said that there is no judge presiding over the hearing to whom the challenge can be made, and that the remaining four jurors can not decide upon the challenge. But there is nothing to decide. The challenge is peremptory, leaving no question to be decided. It is the mere exercise of a right. If the statute has pointed out no mode of supplying the place of the challenged jurors, it yet constitutes no objection to the exercise of the right of challenge, if that right is positively given, as we claim that it is. There is never a- right without a remedy. But there is no reason why the sheriff may not proceed to draw other jurors to supply their place. The fact that the hearing is before the jury alone, without a judge, so far from being an objection to the right of challenge, is a special reason why the jury, thus having the entire control of the trial, should be impartial, and why the right of a party tq such a jury should be protected by the right of challenge. 2. The juror was disqualified by reason of his relationship to an inhabitant of the town of Pomfret, the defend- [ *569 ] ant *in the suit. Every inhabitant of that town is a party to the suit, and can come in and defend. Crawford v. Union, 19 Conn., 331. Relationship to a party in the suit is a disqualification of a juror by the common law of this state. Woodbridge v. Raymond, Kirby, 279. Quinebaug Bank v. Leavens, 20 Conn., 87. [MAJORITY — Hinman, J.] Hinman, J. On the trial of the' application of George Rickard for the reassessment of damages caused by the taking of his land for a highway, he objected to and challenged one of the jurors on the ground of his relationship, by marriage, to a tax-payer of the defendant town. The objection was disregarded, and the juror heard the cause and assisted to find the verdict. The statute providing for the reassessment of damages where land has been taken for a highway, directs that the jury shall consist of “ six able and disinterested electors.” Rev. Stat., tit. 24, § 25. It does not make relationship to an inhabitant of the town interested a disqualification, and we think the legislature intended to specify all the causes which should disqualify a juror. In the 26th section of the act, it is provided that if any of the jurors are tax-payers of the town where the road lies, or own real estate therein, or are connected with any of the applicants for the jury by blood or marriage, in such manner as would by law prevent a judge from acting between party and party, the sheriff shall release them and summon others in their places. This therefore seems to be the case of a proceeding intended to be entirely regulated by statute, and certain causes of disqualification of the jurors are mentioned, without any such general words as to include other causes. We are satisfied therefore that this objection ought not to be sustained. But this same juror was peremptorily challenged, and this was disregarded. This raises the question whether the provision of the statute relating to civil actions, (Rev. Stat., tit. 1, § 110,) which gives to each party in every civil action the right to challenge two jurors peremptorily, without alleging or *showing any cause therefor, is applicable to the trial [ *570 | of a cause before a jury for the reassessment of damages for land taken for a highway. A civil action is defined to be “ tbe legal demand of one’s right.” Sometimes it is called the form of a suit given by law for'the recovery of what is due. Now every demand of a right regularly pending before a court, by which a party seeks to recover his right against another who is depriving him of it, and which is of a civil as distinguished from a criminal character, comes directly within this definition, and, as such, comes of course within the terms of the statute giving the right of peremptory challenge. It is said, however, that the reassessment of damages is not a trial before a jury ; that the triers are rather a committee than a jury, though called a jury in the statute; and that the court will look at them as such. We however, can see no difference between them and ordinary jurors except in respect to the character and extent of their inquiries, and the number necessary to constitute a panel, and in these respects the difference is no greater than exists in the case of trials under complaints for forcible entry and detainer, and to recover possession of leased premises, in which we have lately held that this right of peremptory challenge exists. Quinebaug Bank v. Tarbox, 20 Conn., 510. Miner v. Brown, id., 519. Again, it is claimed that it is impracticable to permit the right to be exercised, since there is no tribunal to judge when it shall be allowed, or when it has been waived, or the party has had the benefit of it, and no provision for the drawing of other jurors to supply the places of those who may be challenged. It is true that the jury are to-reassess the damages without the aid of any one to preside over them. The sheriff who is to attend them has no power to interfere with their proceedings. He is directed, however, to supply the vacancies of interested jurors who have been drawn, and perhaps, from the necessity of the case, it would not be an unreasonable construction of the statute to say that he has the same power to supply the places of challenged jurors, which would entirely obviate any difficulty arising from the want of tlie requisite number ; and in íespeot to the allowance of the right of challenge, and when it has been exercised or waived, the jurors must themselves [ *571 ] judge of it, as they do of *other matters which are involved in the trial. We think, therefore, that there is no very serious practical difficulty in allowing this right to be exercised ; but however this may be, the power seems to us to be positively given, and, as we think, for wise and obvious reasons; and we feel no disposition to limit it in the least. Gases under this statute may be as important, in respect to the amount involved in them, as almost any other, and we see no reason for restricting the right of challenge, that does not apply to all civil actions. It was said also, that this was not a civil action, because it was not pending before any court, but only before the jury as .commissioners, or a committee. We do not see the force of this suggestion. It might as well be said of all jury trials, that they were before no court, because the jury can control the decision of them. But the case itself is before the court, to which the jury must return their verdict, as is the case of all trials before auditors or committees; and the court must act upon it by accepting or rejecting it. It appears to us, therefore, that was error not to allow the peremptory challenge claimed. And on this ground we advise the superior court that the remonstrance is sufficient, and that the report of the jury ought not to be accepted. In this opinion the other judges concurred. Remonstrance sufficient.