{
  "id": 1519177,
  "name": "Shaffstall v. Downey",
  "name_abbreviation": "Shaffstall v. Downey",
  "decision_date": "1908-06-29",
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  "last_updated": "2023-07-14T20:24:32.952897+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "Shaffstall v. Downey."
    ],
    "opinions": [
      {
        "text": "Hart, J.\nThis was air action of replevin brought by A. N. Downey before a justice of the peace to recover a mare upon which he had a mortgage. He alleged that there was a balance due of $104.83, a portion of which ($18.48) was interest upon the purchase price of a span of mules. The object of the suit was the foreclosure of the mortgage.\nFrank Shaffstall, the defendant, in his answer admitted that there was $86.35 due 01:1 the original mortgage, but pleaded as an offset an account against plaintiff for nursing in his family during the illness of plaintiff and of his mother. .He denied that he owed plaintiff any sum whatever for interest. Defendant gave a bond to retain the property. The judgment in the justice\u2019s court was in favor of the defendant. Upon appeal to the circuit court, there was a trial de novo, and the jury returned the following verdict: \u201cWe, the jury, find in favor of the plaintiff a return of the property in question, towit: one bay mare or its value, $105, and we further find that the defendant is due the plaintiff $25.\u201d\nJudgment was rendered in accordance with the verdict, and the costs were taxed against the defendant. The defendant filed a motion to retax the costs, and in support of it read from the docket of the justice of the peace the following: (Caption and style of the court omitted.) \u201cOn this nth day of February, 1907, comes the parties to this cause and in open court, after court was called, the defendant, Frank Shaffstall, offered thirty dollars ($30.00) to A. N. Downey, and asked that it be accepted, and the suit stopped.\u201d\nThe court refused to retax the costs. Defendant then filed a motion for a new trial, and, upon it being overruled, appealed to this court.\nHis first contention is that the court erred in refusing to give to the jury the instructions asked by him. Without setting out the instructions given or refused, it is sufficient to say that we think the theory of the case contended for by the defendant was fully covered by the court\u2019s instruction to-the jury. This is evidenced by the finding of the jury as to the amount due plaintiff by the defendant.\nIn the selection of the jury to try this cause, Dee Mack, a member of the regular panel of petit jurors was asked whether he was related to either party to the suit. He answered that he was related to the plaintiff, Mr. Downey, but that he did not know 'in what degree. The court pronounced him competent. The defendant excepted to the ruling of the court, and, upon his objection being overruled, peremptorily challenged the juror, and in so doing exhausted his peremptory challenges.\nA person selected and returned as a juror is presumed to be qualified and competent to serve, and the burden is upon the challenging party to show to the contrary, who must at least make out a prima facie case. 24 Cyc. 346.\nSection 4491 of Kirby\u2019s Digest provides that \u201cno person shall serve as a petit juror who is related to either party to a suit within the fourth degree of consanguinity or affinity.\u201d\nThe examination of the juror did not disclose that he was related in the prohibited degree. The challenging party should have made out a prima facie case of the juror\u2019s relationship within the prohibited degree by questions asked by the juror or by the offer of other proof. Failing to do this, there was no error in the ruling of the court pronouncing him a competent juror.\nWe think the transcript from the justice\u2019s docket shows an offer to confess judgment. It is a matter of common knowledge that justices do not keep their records with that accuracy and formality that is generally observed in courts of record. The verdict of the jury in the circuit court is evidence that it was the intention of the defendant to confess judgment; for the amounts are nearly the same, and in either case the verdict is far below the amount claimed by the plaintiff. In Petsinger v. Beaver, 44 Ark. 562, this court held: \u201cWhen, on appeal to the circuit court, plaintiff recovers less than defendant offered to confess judgment for in the justice\u2019s court, all costs subsequent to the offer must be taxed to the plaintiff.\u201d Therefore the court erred in not granting defendant\u2019s motion to retax the costs.\nThe court also erred in the form of the judgment. The plaintiff was entitled to the possession of the mare only for the purpose of foreclosing the mortgage. The jury found the balance due him on the mortgage to be $25. The court then should have rendered judgment for the property or the balance due on the mortgage, in accordance with the provisions of section 6869 of Kirby\u2019s Digest.\nThe judgment is therefore reversed, and .the cause remanded with directions to the court to render judgment on the verdict found by the jury for the mare or the balance found due on the mortgage in accordance with the provisions of section 6869 of Kirby\u2019s Digest, and to adjudge all costs against the plaintiff after the refusal of the offer of the defendant to confess judgment in the justice of the peace court.",
        "type": "majority",
        "author": "Hart, J."
      }
    ],
    "attorneys": [
      "Henderson & Campbell for appellant.",
      "Geo. T. Black, for appellee."
    ],
    "corrections": "",
    "head_matter": "Shaffstall v. Downey.\nOpinion delivered June 29, 1908.\n1. Jury \u2014 presumption oe competency \u2014 rebuttal.\u2014A person selected and returned as a juror is presumed to be qualified and competent to serve, and the burden is upon the challenging party to establish a prima facie disqualification. (Page 7.)\n2. Same \u2014 competency oe juror.- \u2014 I-t was not error to accept a juror as competent who testified on his voir dire that he was related to one of the parties, but that he did not know in what degree, in the absence of any testimony showing the degree of such relationship. (Page 7-)\n3. Costs \u2014 oeeer to confess judgment. \u2014 Where, on appeal to the circuit court, a plaintiff recovers less than defendant offered to confess judgment for in the justice\u2019s court, all costs subsequent to such offer should be taxed against the plaintiff. (Page 7.)\n4. Replevin \u2014 mortgaged chattel \u2014 form oe judgment. \u2014 In replevin to recover a mortgaged chattel from the mortgagor, the mortgagee should have judgment for the property or the balance du,e on the mortgage, in accordance with Kirby\u2019s Digest, \u00a7 6869. (Page 8.)\nAppeal from Randolph Circuit Court; /. W. Meeks, Judge:\nreversed.\nHenderson & Campbell for appellant.\nThe court should have held juror Mack to be an incompetent juror. Kirby\u2019s Dig., \u00a7 4491. The presumption is that an offered juror is incompetent until he is shown to be competent. When relationship is once shown to exist, the burden of showing that the' proposed juror is competent devolves upon the plaintiff, or the juror. 41 Tex. 573; 37 S. E., 626; 47 Me. 593; 64 Ind. 133. 12 Tex. A-pp. 163. All costs after the offer to confess judgment should have been adjudged against plaintiff. 44 Ark. 562; 76 Id. 326. The judgment should have been for the mare or for $25.00, the amount the jury found to be due plaintiff. Kirby\u2019s Dig. \u00a7 6869.\nGeo. T. Black, for appellee.\nThe finding of a jury on a question fairly submitted to them will not be disturbed when there is evidence to support it. 67 Ark. 399; 74 Ind. 478; 73 Id. 383. It was not error to permit juror Mack to serve as such on the trial of the case. 16 Ark. 163; 23 Id. 50; 20 Id. 36; 35 Id. 109; 37 Id. 580; 40 Id. 511; 44 Id. 122; 35 Id. 640. The trial court is presumed to have proceeded according to law. 72 Ark. 590."
  },
  "file_name": "0005-01",
  "first_page_order": 27,
  "last_page_order": 30
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