Thomas v. Hilton

Mr. Justice Allyn

delivered the opinion of the court.

Plaintiff in error filed his petition as an insolvent debtor under chapter 143 of the Code, in the District Court of Snohomish county. Notice was given, and the defendant in error, as a creditor, appeared and filed his specifications in opposition to the debtor’s discharge, on the ground of fraud.

The court, on motion of plaintiff in error, under section 2033, summoned a jury of six men to decide the charge of fraud as affecting the debtor’s discharge. Under the direction of the court, and on motion of plaintiff in error, the jury returned a verdict that he was not guilty of fraud.

Several minor questions are made to the sufficiency of the notice, effect of an appearance, etc., but these are in nowise controlling and will not be considered.

The important and decisive question is, could the court disregard (as it did) the verdict this jury returned and refuse to be controlled by it ? It is argued that this verdict under ■section 2033 is final and conclusive until set aside or reversed.

And, on the other hand, that it is merely special or ■advisory, and in no way precludes the court from making a ■different finding, if the facts should demand it. Further, that large property rights being involved, the question could mot be submitted to, or determined by, a jury of sis men.

"We entirely agree with the principle asserted, that a jury, in such a case, must be composed of twelve men, and that a verdict rendered by sis men, or any less number than twelve, is of no effect whatever (Lamb v. Lane, 4 Ohio St. 167; Cruger v. Hudson R. R. Co., 12 N. Y. 190, and other citations made by defendant in error); and for the reason that section 2033 provides for submission of this question to a jury of less than twelve, the same is unconstitutional.

It follows, therefore, that this verdict, thus rendered, was wholly void; that the court below very properly refused to consider it, and made a finding entirely independent of such verdict. The judgment below is affirmed.

Tubneb, J., concurred.