
    Eshelman v. The Chicago, Rock Island & Pacific R’y Co.
    1. Jury: not less than twelve: code, § 2793: constitutionality. The jury contemplated by the constitution is the jury recognized by the common law, which is constituted of twelve men. It follows that a verdict by a jury of less than twelve men is of no effect unless the objection is waived, and that § 2793 of the Code, authorizing a verdict from ten or eleven jurors, when the jury has been reduced to that number by sickness, is in conflict with the constitution.
    2. -: SUBMISSION OF CAUSE TO ELEVEN MEN: OBJECTION NOT waived. Where one of the jurors was sick and absent, and defendant objected to proceeding with eleven jurors, it did not waive the objection by moving for judgment upon a special verdict returned by the eleven.
    3. Practice in Supreme Court: insufficiency of petition: objection too late. An objection that the petition is not sufficient to sustain the verdict cannot be urged for the first time in this court.
    
      Appeal from Jefferson Circuit Court.
    
    Friday, October 23.
    Action to recover for certain cattle killed by a train upon defendant’s railroad, at a place where the right to, fence existed. There was a judgment upon a verdict for plaintiff. Defendant appeals.
    
      Wilson <& Si/nTele, for appellant.
    
      J. B. MoOoy and B. F. Batoliff, for appellee.
   Beck, Oh. J.

I. The record shows that after the evidence and arguments of counsel were submitted to the jury upon Saturday, they were permitted to separate until Monday, when it appeared that one of them was sick and unable to attend court. Thereupon the sick juror was discharged, and the court, against defendant’s objection, submitted the cause to the remaining eleven jurors.- This is now complained of as error.

II. The jury contemplated by the constitution is the jury recognized by the common law, which is constituted of twelve persons. In securing the right of trial by jury, that instrument gives no authority to the legislature to pro vide for a less number than twelve jurors. It was ruled by this court twenty-seven years ago that a jury consisted of twelve persons, and that a verdict of a less number was of no effect unless the objection was waived. Cowles v. Buckman, 6 Iowa, 161. The doctrine of this case has never been brought in question since its decision. It follows that Code, § 2793, authorizing a verdict from ten or eleven jurors, when the jury has been reduced to that number by sickness, is in conflict with the constitution.

III. It is insisted by plaintiff that this objection was waived by defendant by a motion for j udgment upon a special verdict. We think differently. The defendant . J objected to the jury at the proper time because the absence of one juror. But the objection was overruled. - It was not then required to abandon the defense of the case, but was authorized to contest it even before an unlawful jury, and to insist upon all objections arising upon tbe trial. It was authorized to ask a verdict at tbe bands of sucb jury, and a judgment tbereon, and tliis was all it did by tbe motion for judgment upon tbe special findings.

IV. Tbe defendant insists tliat the petition is defective, and not sufficient to support tbe verdict, in that it fails to aver ^iat cat^e killed went npon tbe railroad track and Were killed by reason of defendant’s failure to fence tbe road at a point where it bad £0 construct fences. But this objection was not raised upon upon demurrer, and it is not clear that it was raised in tbe motion in arrest of judgment. We do not, therefore, pass upon it. Other objections are not considered, for tbe reason that the alleged errors cannot again occur in another trial.

For the error in submitting tbe case for verdict to eleven jurors, tbe judgment of tbe circuit court is

Reversed.  