PITTS et al.
Plaintiffs made a motion to set aside a judgment in favor of the defendant and to grant a new trial, on ground of alleged irregularity in drawing of jury panel. The Superior Court, Richards, P. J., held that where duly appointed jury commissioners for Sussex County on December 10 drew two jury panels from lists of persons obtained by them to serve as petit jurors, and one of the panels was to serve as jurors at February Term, and the other panel was to serve at April Term of Superior Court, jury panel for April Term was properly drawn.
[48 Del. 312] Motion on behalf of the plaintiffs to set aside a judgment in favor of the defendant and grant a new trial.
W. Howard Thompson, Georgetown, for plaintiffs.
Samuel R. Russell (of Tunnell & Tunnell), Georgetown, for defendant.
RICHARDS, President Judge.
The contention is made that the judgment rendered in favor of the defendant on May 8, 1953, is invalid, by reason of the fact that the jury by which said judgment was rendered was not drawn in the manner provided by the statute and that its proceedings were, therefore, null and void.
Rule 59(b), Del.C.Ann., provides that a motion for a new trial shall be served not
later than ten days after the entry of the judgment. The plaintiffs not having filed their motion in the required time did not comply with the rule. Rule 60(b)(6), however, provides that the Superior Court, may, upon motion, relieve a party from a final judgment, upon such terms as are [48 Del. 313] just, for any reason justifying relief from the operation of the judgment. The plaintiffs' motion is entitled to consideration under this rule.
Title 10, § 4508, of the Code of 1953, prescribes that the Jury Commissioners for Sussex County, shall 15 days before the commencement of each term of the Superior Court in said county, and at such other times as they may be directed by the Court, draw from box marked ‘ Petit Jurors' the names of 36 persons apportioned as nearly equally as may be among the representative districts of the county, to serve as petit jurors at the ensuing term of the Superior Court in said county.
Section 4511 of the same title of the Code prescribes, that if either of the jury Commissioners is absent at any drawing of jurors his place shall be supplied, pro tempore, by the Resident Associate Judge of the county in which said Commissioner resides.
On December 10, 1952, C. Donnan Holzmueller and Joseph B. Waples, Jr., the duly appointed Jury Commissioners for Sussex County, drew two jury panels from the lists of persons obtained by them to serve as petit jurors; one panel to serve as jurors at the February Term, 1953, and one panel to serve at the April Term, 1953, of the Superior Court in said county.
On said December 10, 1952, the jury panel drawn for the April Term, 1953, was delivered to the Prothonotary. On March 12, 1953, Joseph B. Waples, Jr., one of the Jury Commissioners for Sussex County, in the absence of C. Donnan Holzmueller, the other Jury Commissioner, and at a time when he was absent from the State, drew the panel of jurors for April Term, 1953, as formerly drawn by himself and the said C. Donnan Holzmueller, on December 10, 1952.
The jury which heard the plaintiffs' case on May 8, 1953, and rendered a judgment in favor of the defendant ...