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State v. McFadden

December 31, 1919

STATE OF NEVADA, EX REL. ANTHONY JURICH, PETITIONER, V. C. J. MCFADDEN, JUDGE OF THE NINTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR WHITE PINE COUNTY, RESPONDENT.


A. Jurich and H. W. Edwards, for Petitioner.

Chandler & Quayle, for Respondent.

By the Court, Sanders, J.:

This is an original proceeding in certiorari, growing out of the following facts:

Bill Margeas brought an action in the justice's court of Ely Township No. 1, White Pine County, Nevada, against Anthony Jurich, to recover the sum of $100. Anthony Jurich, who is an attorney at law, answered in proper person, and, in addition to resisting the demand of the complaint, set up a counter-claim for $55. The justice of the peace rendered judgment for costs in favor of Jurich, but denied recovery on his alleged counter-claim. Margeas appealed to the district court, where Jurich demanded a jury trial. On September 8, 1917, the cause was set for trial on October 16, 1917, at which time a regular jury panel was to be in attendance. On September 18, 1917, Jurich and one of the firm of attorneys for Margeas being present in court in connection with other matters, the following proceedings were had in connection with the case of Margeas v. Jurich:

“Mr Quayle (attorney for Margeas)—I wish to ask with reference to the case of Bill Margeas against

[43 Nev. 140, Page 144]

Anthony Jurich—I wish to ask if it is possible, in view of Mr. Margeas having qualified and being subject to call at any time to the draft, if we cannot in that case agree upon a special venire so that that can be tried. Mr. Jurich has demanded a jury trial and it is very doubtful if Mr. Margeas will be here in October, when the regular venire will be in attendance, and if that case can be tried early next week we will be able to have a conclusion before Mr. Margeas goes away to war.

“Mr. Jurich—The case has been set regularly before the regular jury, and I insist on it being tried in the regular way.

“The Court—Well, he has been drafted and he is going to answer the call of his country, and he has a right to have this civil business disposed of. I will set it for next Wednesday morning for a special venire at 10 o'clock, September 24.

“Mr. Jurich—Let the record show that I object to the court resetting the case, and having demanded a jury trial and the case having been set in the regular way that I want to try the case before the regular jury; and at this time I do not consent, but object, to the special venire.

“The Court—The objection will be overruled and the venire will be issued.

“Mr. Jurich—Take an exception.”

The case was tried before the district court with a jury on September 24, 1917, and at the conclusion of the testimony counsel for Margeas moved the court to direct the jury to find a verdict in favor of the plaintiff for $95. Upon the conclusion of the argument the court granted the motion, and the defendant excepted. The jury were then recalled into the jury box, whereupon the court stated:

“Gentlemen of the jury, during the recess of the court a motion was made by the plaintiff for a directed verdict, and the court has the power and control over the verdicts in civil cases. That motion is granted, and you are instructed to bring in the following verdict:

[43 Nev. 140, Page 145]

‘We, the jury duly sworn and impaneled to try the issues in this case, find for the plaintiff in the sum of $95. Dated September 24, 1917.' Have your foreman sign that and return it into court.”

Mr. Jurich excepted to the instruction and the verdict, on the ground and for the reason that under the law and the evidence in the case the court had no such power.

“The Court—You may raise that by motion to set aside the verdict.

“Mr. Jurich—Well, at this time I ask the court for my right under the constitution to ...


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