People ex rel. Vandeusen, v. First Judge of Columbia

Majority

p. 398

The People, ex rel. Vandeusen, vs. The First Judge of Columbia.

Headnote

On a motion for a common law certiorari, opposing affidavits may be read.

Under the act relative to the assessment of damages on the route of the Albany and West Stoekbridge Rail Road {Sees. L. 1836, p. 363, § 7) by “ twelve competent and disinterested jurors” to be drawn from the grand jury box ; held, no objection to the competency of a juror that he had been an appraiser of damages upon another rail road in the same county, or that he was a stockholder in another rail road company which had long before acquired the lands necessary for its use.

A common law certiorari brings up nothing but the record, or other entry in the nature of a record, and consequently will not reach those questions which upon trials at common law are reviewed on a case or bill of exceptions; e. g. questions relating to the admission or rejection of evidence, &c.

In a proceeding for the assessment of damages under the above act, the judge to whom the petition was presented made an order appointing a time and place for the drawing of the jury, declaring therein that he would continue the drawing from day to day, if necessary, until a full jury should be obtained. This having been duly served upon the parties interested, and a competent number of jurors drawn at the appointed time, the judge adjourned the proceedings for three days, for the purpose of then supplying vacancies, if any of the persons drawn should be unable to servo. On the adjourned day, and upon satisfactory evidence that two of the persons drawn could not attend, the judge supplied their places by a second drawing. Held that the proceeding was regular.

Motion for a certiorari. The route of the Albany and West Stoekbridge rail road passes over the relator’s land at Chatham in the county of Columbia. Having failed to agree with the relator and several other land owners in Chatham, the company applied by petition to the first judge of the county for a jury of appraisers, pursuant to the 7th section of the act to amend the charter of the company. [Stat. 1836, p. 363.) The section provides, that “ the said judge shall thereupon direct reasonable notice in writing to be given to the owners of such lands, of the time of drawing such jury, which shall be at the clerk’s office in the county where the land is situated, and upon due ■ proof thereof, and hearing the parties, or such of them as may attend and object to the regularity of the proceed

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ings on the part of the said corporation, such judge, together with the clerk of said county, shall draw from the grand jury box of the county, the names of twelve competent and disinterested jurors, who, by an order to be made by such judge, and entered in the common rule book of the court of common pleas, shall be appointed appraisers of the damage to be sustained by such owners in the construction of such road; and should any person or persons so designated refuse or neglect to serve on said jury, or be disqualified, the vacancy or vacancies shall be filled by the said judge in manner aforesaid.” On presenting the petition the judge made an order requiring notice to be given to the several land owners named in it, that the jury would be drawn at the county clerk’s office on the 26th of October, 1841, at two o’clock P. M., and that the proceeding would be continued at the same place from day to day thereafter, if necessary, until the drawing of the jury should be completed. A copy of the order was served on the relator. At the time and place appointed, several of the land owners attended—the relator among the number—and the judge and county clerk proceeded to draw the jury. The relator objected to two of the jurors whose names were drawn— as to the first, that he had been a commissioner for appraising damages under the act incorporating the Hudson and Berkshire rail-road company; and as to the second, that the juror and his sons or one of them, owned stock in the last mentioned company. No proof was offered of the facts alleged, and the judge overruled the objections.

When the names of twelve jurors had been drawn, the judge made an order, which was entered in the common rule book, appointing them appraisers. But the judge at the same time declared that he should hold the proceedings • open until the 29th day of the same month at noon, and would adjourn until that time, for the purpose of then drawing additional jurors in case of a vacancy. The judge thereupon gave an order to one of the deputies of the sheriff to notify each of the jurors of his appointment, and ascertain whether they could attend, and make report on

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the said 29th of October at noon. At that time the officer furnished the judge with satisfactory evidence that two of the jurors could not attend, and the judge and clerk thereupon drew two other names to supply the two vacancies; and the judge made and entered a further order appointing the two persons so last drawn as jurors in the place of the two who could not attend. The jury of appraisers thus constituted, after having viewed the premises, and heard the relator and his proofs, so far as they were deemed pertinent, appraised- his damages. The relator in his affidavit denied that he knew of the adjournment from the 26th to the 29th of October—having left the clerk’s office before it was announced by the judge—and he did not attend the drawing of the last two jurors; but the counsel for one of the other land holders did attend.

The relator now moved for .a certiorari to remove the proceedings into this court, and insisted that they were erroneous.

S'. Cheever and M. T. Reynolds opposed the motion.

By the Court,

The objection to hearing affidavits in opposition to the motion is answered by the case of The People v. Supervisors of Queens, ( 1 Hill, 195 .) The objections to two of the jurors whose names came out upon the first drawing, were properly overruled. The facts upon which the objections rested were not proved, nor did the relator offer any proof. And besides, if the facts had been taken for granted, they amounted to nothing. If one of the jurors had been an appraiser of damages upon another rail-road in the same county, he was the better qualified to discharge the like duty in relation to this road. As to the other juror, the alleged disqualification consisted in his owning stock in another rail-road company. But that company had long before acquired the necessary lands, and the road had been several years in operation.# I cannot see that the juror had any interest or feeling which could operate against the relator.

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The jury, when assembled, decided ffiat the company held the affirmative, or was to be regarded as plaintiff in the proceedings ; and they rejected a part of the evidence offered by the relator, on the ground that it was not pertinent to the question to be decided. If the jury erred in either or both of these decisions, the matter cannot be reached by a common law certiorari.

The writ brings up nothing but the record, or other entry in the nature of a record. It does not reach those questions which upon trials at common law are reviewed on a case or bill of exceptions. This doctrine is too well settled to be now called in question.

The only question of much importance is that which relates to the manner in which the jury was drawn and organized. And as to that, I am unable to see any solid objection to the course which was pursued. The act contains no provision for compelling the attendance of the jurors; and if they were under the same obligation to appear as they would be when summoned as grand jurors, it was highly probable that some one or more of the twelve would have a sufficient legal excuse. Foreseeing this, the judge made an order which was calculated to avoid the useless expense and delay of giving a new notice, and going through with all the forms a second time, for the purpose of supplying the place of any juror who might not attend. After appointing the time and place for drawing the jurors, the judge declared in his order that he would continue the drawing from day to day, if necessary, until it should be completed—in other words until a full jury should be obtained. In pursuance of this order—a copy of which had been served on the relator and the other land owners—the judge adjourned the proceeding for three days, for the purpose of then supplying any vacancy there might be in consequence of the inability of any of the first drawn jurors to attend. On the adjourned day, and upon satisfactory evidence that two of the jurors could not attend, the judge proceeded to supply their places by drawing two other names. If we give the statute a rea

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sonable construction, there has, I think, been a full compliance with its requirements. The relator has had ample notice, and the opportunity of attending and taking every objection which he might deem important. And besides, he appeared and prosecuted his claim before the jury as it was finally organized, and thus took the chance of obtaining what he might consider a very satisfactory appraisement of his damages. But without stopping to enquire whether he is now too late to object to the mode in which the jurors were drawn, I think the judge was right in the course which he pursued.

The fact that the relator left the clerk’s office before the judge announced the adjournment to another day, is of no legal importance. The defendant had been advised by the first order that the drawing was to be continued at another time, if necessary; and he has no right to complain that he voluntarily went away before the day and hour had been fixed by the judge.

On full consideration of all the questions which have been made by the relator, we see no sufficient ground for awarding the writ.

Motion denied.