CHALLENGE TO JURORS.

[Clark Circuit Court,

May Term, 1890.]

Shauclc, Shearer and Stewart, JJ.

#### JOHN GRAM ET AL. v. DAVID W. SAMPSON.

If Numerous Parties, Can Have but Two Challenges for the Side.

In a civil action brought against two or more defendants jointly, where the defendants file separate answers making the same defense, and are represented by different counsel, all of said defendants constitute one party to the action under sec. 5177, Rev. ■ Stat., and are entitled to but two peremptory challenges.

Error to the Court of Common Pleas of Clark county.

In this case S. brought suit against G., Z., M. and D. to recover damages for false imprisonment. D. filed his answer, which was a general denial followed by a specific denial for himself. G. and Z.-, *hy*other counsel, filed a separate answer making the same defense. On the trial, as appears by the bill of exceptions, the answering defendants appeared by separate counsel, and after all the challenges for cause had been made and ruled upon by the court, the defendant G. challenged one of the jurors peremptorily; thereupon the plaintiff, having had an opportunity to challenge peremptorily, the defendant D. peremptorily challenged one of the jurors, and the plaintiff declining to challenge any of the jurors,' the defendant Z. peremptorily challenged one of the jurors, but the court overruled his challenge, and he excepted, and the juror thus challenged by Z. remained on the panel. A verdict was rendered in favor of the plaintiff against all the defendants except D., and a motion for a new trial having been overruled, this petition in error was filed, and we are asked to reverse the judgment upon the sole ground that the court below erred in refusing to the defendants G. and Z. two peremptory challenges.

Stewart, J.

The statute governing jury trials in civil cases provides, so far as it relates to this question: “Each party may peremptorily challenge two jurors.” Section 5177, Rev. Stat. The only reported decision upon this point in Ohio, so far as we have been able to learn, is the case of Moores & Co. v. The Bricklayers’ Union et al., 23 Bull., 48, superior court of Cincinnati, general term. The decision is adverse to the claim of the plaintiffs in error, but it is claimed that the authorities cited in support thereof do not sustain the court in its conclusions. There is much force in this claim, so far as it relates to the case of U. S. v. Alexander, 17 Pac. Rep., (Idaho) 746, for, as appears from the opinion of Broderick, J., the statutes of Idaho require, where there were several parties on either side, that they must join in a challenge before it can be made. In giving a construction to this statute, it is urged that unless the statute clearly indicates the contrary, each person in a cause should be entitled to the number of peremptory challenges provided by the statute. This has been held repeatedly, and we think rightly, in criminal cases, upon the familiar doctrine that in construing statutes changing the common law the latter shall not be considered as altered further than the plain provisions of the statute required. Abbott’s Trial Brief, sec. 300; Thompson & Merriam on Juries, sec. 162 (5).

But this principle does not apply in the construction of statutes giving the right of peremptory challenges in civil cases, for there was no such right at common law. Thompson & Merriam on Juries, sec. 154.

We must, then, so construe this statute as to carry out the manifest intention of the legislature in its enactment, and for that purpose we may look to other acts of *667the legislature upon the same subject matter, and give to th,e words used their usual and ordinary meaning. The word “party” means “he or they, by or against whom a suit is brought, whether at law or in equity; the party plaintiff or defendant whether composed of one or more individuals, and whether natural or legal-persons; the contending parties in a suit, plaintiff and defendant, as distinguished from counsel and client.” Anderson’s Law Dictionary, “Party.”

■ The legislature has provided for the peremptory challenging- of juries in criminal cases in sec. 7272, Rev. Stat., as follows:

> “Every person indicted (for a capital offense), and who pleads riot guilty, shall be entitled to challenge sixteen of the jurors peremptorily,” and in sec. 7277, as follows:

> “Except as otherwise provided, the prosecuting attorney and every defendant may peremptorily challenge two of the panel, and any of the panel for cause.”

The reading of these statutes would seem to leave no doubt as to their meaning, but the legislature, to remove all questions as to their intention in passing them, enacted in sec. 7280, the following:

> “If two or more persons be put on trial at the same time, each must be allowed his separate peremptory challenge.”

Thus we see how carefully the legislature has guarded the rights of each defendant in a criminal cause, and the use of such specific language in the one case is very significant of thé intention of the legislature in passing the law under consideration. It must have been for the purpose of showing that the legislature intended a different rule to apply in criminal and civil cases. Schmidt v. R’y Co. et al., 83 Ill., 405. Thus construing the words used in the statute in their ordinary and as well in their legal sense, and giving effect to the statute in accordance with the manifest intention of the legislature, it seems clear to us that where, as in this case, several defendants are sued as jointly liable, if they make the same defense, although pleading and appearing at the trial by separate counsel, they must be treated as one party, and are not each entitled to two peremptory challenges; nor are they entitled to two peremptory challenges for each separate answer filed. This view is supported by a long line of authorities in-other states. Bibb v. Reid, 3 Ala., 88; Snodgrass et al. v. Hunt, 15 Ind., 274; Blackburn v. Hays, 4 Coldw., (Tenn.) 227; McClay v. Worrell, 24 N. W. Rep., (Neb.) 429; Sodousky v. McGee, 4 J. J. Marsh, 267; Stone v. Seegar, 11 Allen, 568; Schmitd v. R’y Co. et al., 83 Ill., 405; Thompson & Merriam on Juries, sec. 163. And where the precise language used in the statute under consideration was used in a criminal statute, the sariie construction we have given it was given in Hamlin v. State, 10 Atl. Rep., (Md.) 214; State v. Cady, 14 Id. (Me.) 940; People v. Laughlin, 3 Utah, 133. The only case holding the other way in a civil case, to which we have been referred, or which we have been able to find, is the case of Stroh v. Hinchman, 37 Mich., 490. The first proposition of the syllabus is:

> “Each defendant who pleads separately by different counsel is separately entitled to the two peremptory challenges allowed by statute.”

It appears from the opinion that the language of the Michigan statute in regard to peremptory challenges is the same as that of Ohio. If this were the only decision to be found upon this subject, and the other statutes of that state were similar to our own, and we knew nothing of the case except as appears in the syllabus, this would be very persuasive authority.

But as we have seen, this case stands opposed, so far as we have been able to find, to all the other decisions upon the subject. Again, much consideration, as we have said, is to be given to the different language used in our civil and criminal statutes upon the same subject. And a careful reading of the opinion of Judge Cooley, in which appears a full statement of the facts in the case, shows what appears to us to be a marked distinction between that case and the case at bar. In the language of Brewer, J., in the case of State v. Durein, 29 Kan., 493, 495, the substance and effect of Judge Cooley’s opinion is that “where two defendants sever *668in pleas, and appear by different counsel to litigate antagonistic defenses, each must be deemed a ‘party’ within the enactment: and entitled to two challenges.”

Mower & Mower, for plaintiffs.

Geo. C. Rawlins, for defendant.

In the case at bar there were no antagonistic defenses, and what construction.should be put upon the statute in a case where there were, we are not called upon to decide; but wc are of the opinion, that for the reasons given, the case in the 37 Mich., is not an authority for reversing the judgment of the court below.— The judgment will be affirmed.