People on rel. Livermore v. Hamilton

15 Abb. Pr. 328

Opinion

By the Court.

Footnotes

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*—Sutherland, P. J.

It is plain, that the proceedings in this case should be reversed. The landlord had no right peremptorily to challenge the juror, nor had the magistrate any power to set the juror aside on such challenge.

The controverted facts may be tried either by the magistrate or by a jury,—by a jury, provided either party to the proceeding, at the time designated in the summons for showing cause, demand a jury, and pay the costs of obtaining the jury. (3 Rev. Stat., 5 ed., 837, § 34.) In this case, the relators, the tenants, demanded that the controverted facts be tried by a jury. The act of 1849 (292, ch. 193, § 3), amending the provisions of the Revised Statutes, provides for the nomination by the magistrate of twelve reputable persons, qualified to serve as jurors in courts of record, and for the summoning of such persons to appear before the magistrate. Section 4, of the same act, provides that “ six of the persons so summoned shall be drawn in like manner as jurors in justices’ courts, and shall be sworn,” &c.' By the Revised Statutes, before the act of 1849, the magistrate was to nominate eighteen reputable persons, qualified to serve as jurors, who were to be summoned, &c., and tweime of the persons so summoned were to “ be balloted for, and d/t'awn, in like manner as jurors in courts of record,” &c. (2 Ib., 514, §§ 35, 36.)

When the act of 1849 was passed, the manner in which jurors injustices’ courts were to be drawn was prescribed by statute, as follows: “ the names of the persons so returned (returned as having been summoned as jurors), and who shall appear, shall be respectively written on several and distinct pieces of paper, as nearly of one size as may be; and the constable, in the presence of the justice, shall roll up, or fold such pieces of paper, as nearly as may be, in the same manner, and put them together in a box, or some convenient thing. The justice shall then draw out six (or such number as the parties may agree upon) of such papers,” &c. (2 Rev. Stat., 243, §§ 99, 100.) It was further provided by the statute (§ 100), that “ if any of the persons whose names shall be so drawn shall be challenged and set aside, then such further number shall be drawn as will make up the number required, after all legal causes of challenge allowed by the justice.” The statute further declared (§ 100), that “ the persons so drawn, appearing and approved as indifferent,” should compose the jury to try the cause.

It is perfectly plain, that the manner or mode of drawing the jurors, prescribed by the statute, is a distinct thing from, and does not include the challenge, or right to challenge, recognized by the statute. The drawing of the jurors is one thing, the challenge of them another thing. The jurors are to be challenged as, or after, they are drawn. It is plain, too, that the challenge recognized by the statute is a challenge for cause, not a peremptory challenge. The jurors sworn are to be com.petent, and approved as indifferent.

By the act of April 27th, 1847 (130, ch. 134, § 1), it was enacted, that “ upon the trials of any issue or issues of fact joined in a civil action, each party shall be entitled peremptorily to challenge two of the persons drawn as jurors for such trials.”

Concede that this provision gave the right of peremptory challenge on trials by jury in justices’ courts, yet this peremptory challenge was a distinct thing from the manner of drawing the jury, as I have before remarked in respect to the challenge for cause. The challenge, either peremptorily or for cause, was no part of the process or proceeding of drawing the jury, though it might be of impanelling the jury.

The provision, therefore, of the act of 1849, that “ six of the persons so summoned shall be drawn in like manner as jurors in justices’ courts,” &c., did not give the right to the landlord to peremptorily challenge the juror in this case, or power to the magistrate to set the juror aside. If either the tenant or the landlord had a right to challenge any of the jurors drawn for cause, such right did not rest on the provision of the act of 1849 as to the manner of drawing the jury; but upon the provision of the act, that the persons nominated by the magistrate to be summoned as jurors shall be “ qualified to serve as jurors in courts of record,” and upon the ground that the grant of the right of trial by jury means, or implies, a competent and indifferent jury, and, therefore, carries with it the right of challenge for cause.

The right of peremptory challenge in this summary proceeding was not given directly by the act of 1847, for these statutory summary proceedings to get possession of land, in certain cases, are not civil actions. They are not actions at all. They are summary proceedings, to prevent the delay and expense of actions. Such a proceeding is not an action by the Code (Code, §§ 1-3): it was not an action before the Code. It can hardly be said that the magistrate renders a judgment in the proceeding, even when he tries the matters controverted without a jury.

Every step of the proceeding is statutory and jurisdictional, and therefore the statute must be strictly pursued. (Farrington a. Morgan, 20 Wend., 207.)

In this case, the relators objected to the allowance of the challenge without cause. The magistrate overruled the objection, and the juror was set aside. It is clear that the proceedings should be reversed, but I do not think that we should award restitution to the relators, under the facts and circumstances of the case. I think we should deem the lease under which the relators held to have expired, and leave them to their action under the statute for damages, if they have sustained any.

Present, Sutherland, P. J,, Ingraham and Clerke, JJ.