#### Richardson v. Louisville & N. R. Co.

May 5, 1942.

S. F. Bowman, Stanley Powell and J. J. Felton for appellant.

Edward R. Denney, H. T. Lively and C. S. Landrum for appellee.

Opinion of the Court by

Judge Rees

— Affirming.

Albert Richardson brought an action against the Louisville *&*Nashville Railroad Company to recover damages in the amount of $26,587.45 for personal in*358juries, medical bills, and damages to Ms truck wbicb be alleged resulted from a collision between tbe truck and one of defendant’s trains on a public crossing on September 28, 1938. Tbe case was tried April 24, 1940, and tbe jury returned a verdict for tbe defendant. On April 27, 1940, tbe plaintiff filed bis motion and grounds for a new trial in wbicb be relied upon a number of grounds, including misconduct of the jury, undisclosed relationship of two jurors to employees of tbe defendant, and the fact that J. T. Meadows, one of tbe jury commissioners, was an employee of tbe defendant and, at tbe time tbe jurors for tbe April term, 1940, of tbe Rockcastle circuit court were selected, knew that tbe case was coming up and was due to be tried at that term and that be would be called as a witness in tbe case. Tbe motion for a new trial was overruled, and tbe plaintiff was given until tbe seventh day of tbe August term, 1940, in wbicb to prepare and tender bis bill of exceptions. Tbe plaintiff did not file bis bill of exceptions, but on June 14, 1940, filed a petition in equity in tbe Rockcastle circuit court against tbe Louisville *&*Nashville Railroad Company in wbicb be sought to have tbe judgment entered in tbe ordinary action vacated and set aside. He alleged in bis petition that after tbe judgment bad been entered and after tbe April term of the Rockcastle circuit court bad closed, be discovered that tbe jury selected to try tbe case bad not been selected from tbe assessment rolls of Rockcastle county, but bad been selected from people whom tbe jury commissioners personally knew and from tbe registration list, and that tbe names of tbe jurors were not placed in tbe jury drum or wheel. He further alleged that be could not have discovered tbe unlawful methods employed by tbe jury commissioners by tbe exercise of reasonable diligence; that a large number of jurors selected by tbe jury commissioners bad not then any assessable property in Rockcastle county, and their names did not appear on tbe assessment rolls of tbe county. He also alleged that James Meadows, one of tbe jury commissioners, knew that plaintiff’s suit against tbe railroad company was pending in tbe Rockcastle circuit court and would be tried at the April term, 1940, and that Meadows bad been an employee of tbe railroad company for more than thirty years. A demurrer to tbe petition in equity was sustained, and, from tbe judgment dismissing bis petition, tbe plaintiff has appealed.

*359The affidavit of Hunt Perry, one of the jury commissioners appointed by the Rockcastle circuit court at its January term, 1940, was filed with the petition. It appears from this affidavit that the jury commissioners failed to comply with section 2241 of the Kentucky Statutes which provides that they shall take the last returned assessor’s book for the county and from it shall carefully select from the intelligent, sober, discreet, and impartial citizens, resident housekeepers in different portions of the county, over 21 years of age, the number of names of such persons thereafter specified, the number to be determined by the population of the county. In counties having a population of more than 10,000 and not exceeding 20,000, the jury commissioners are required to select not less than 162 nor more than 300 names. Rockcastle is in that population. group. Each name must be written on a small slip of paper, and each slip enclosed in a small case made of paper or other material and deposited, unsealed, in the jury wheel. When the required number of slips have been deposited in the wheel, the jury commissioners shall draw therefrom a sufficient number of names to procure 24 persons qualified to act as grand jurors and record the names on paper. The list shall be certified, signed, and enclosed by the jury commissioners in an envelope, and it shall be sealed and their names written across the seal. After completing the list of grand jurors, a list of petit jurors shall be prepared in the same manner, and from this list the next petit jury for the county shall be selected and impaneled. It is alleged in the petition and stated in Hunt Perry’s affidavit that the jury commissioners appointed by. the Rockcastle circuit court at its January term, 1940, first placed the names of persons to serve as grand jurors at the next term of court in an envelope, and then prepared a list of names of persons to serve as petit jurors at the next term and placed the list in an envelope. The names recorded on these two lists had not been placed in the jury wheel. After preparing these lists the commissioners placed 235 names in the jury wheel for use at future terms of the Rockcastle circuit court for the year 1940. The names placed on the two lists and in the jury wheel were not selected from the assessment roll of the county, but were selected from the list of registered voters. It is appellant’s contention that he did not have an adequate remedy by appeal from the judgment rendered against him in the ordi*360nary action, and that lie is entitled to relief from the failure of the jury commissioners to select petit jurors as provided by Section 2241, Kentucky Statutes, although no challenge was made to the panel, if such failure was not discovered until after term time. In support of his contention that the irregularity in the selection of the jury list for the April term of court at which his case was tried and which was not" discovered during the term is ground for vacating the judgment rendered at that term, appellant cites and relies upon Reynolds v. Evans, 244 Ky. 267, 50 S. W. (2d) 549, and Webb v. Niceley, 286 Ky. 632, 151 S. W. (2d) 768. In each of those cases the suit to vacate the judgment was ■brought under section 518, subd. 4 of the Civil Code of Practice, which provides that the court in which a judgment has been rendered shall have power after the expiration of 'the term to vacate or modify it for fraud practiced by the successful party obtaining the judgment. It is not claimed in the present case that fraud was practiced by the appellee in obtaining the judgment. It is merely alleged ip the petition that the jury commissioners failed to select the jurors for the April term of court from the last returned assessor’s book of the county and to draw their names from the jury wheel as directed in Section 2241 of the Statutes.

The case of Galliaer v. Southern Harlan Coal Company, 247 Ky. 752, 57 S. W. (2d) 645, 647, is conclusive of the question. In that case the losing party assigned as one of his grounds for a new trial irregularity in filling the jury wheel by the jury commissioners. The jury commissioners did not use the assessment roll in’selecting names placed in the wheel, but got them from memory. Nineteen of the thirty-six names on the jury panel were not on the assessor’s book at all. It was said:

> “The rule is well settled that a challenge to a juror for cause .must be made before the trial. The acceptance of the jury precludes the defendant from thereafter presenting a challenge for cause. This objection to the jury therefore came too late. The assessor’s book is a public record. The names of the jury when drawn are also a public record, and, if a litigant wishes to complain, he must complain before the jury is accepted. ’ ’

In the Galliaer case the irregularity was discovered during the term at which the case was tried, but was not *361allowed as a ground for a new trial. To the same effect are Taylor v. Commonwealth, 256 Ky. 667, 76 S. W. (2d) 923; Gratliff Coal Company v. Hill’s Adm’r, 263 Ky. 309, 92 S. W. (2d) 56; City of Covington v. Lovelace, 243 Ky. 627, 49 S. W. (2d) 593.

. Both the assessment roll and jury list were public records, and appellant, by the exercise of reasonable diligence, could have discovered that the names on the jury list had not been selected from the assessment roll.

The chancellor ruled correctly on the demurrer to the petition, and the judgment is affirmed.