Edward Douglass White

“ The action of the court below was in violation of this statute. It refused to make up the list of 18, as requested, and confined the right of peremptory challenge to the 12 jurymen called to be sworn, on the ground that such was the custom or rule of practice of the court. Manifestly, the 'rule' or custom of the court could not override the mandatory terms of the statute. That to thus impanel a jury in violation of law, and in such a way as to deprive a party of his right to peremptory challenge, constitutes reversible error, is clear. ”

“ The writ of error was allowed and sealed on June 5, 1891. It is contended that we are without jurisdiction, because, by the act creating the circuit courts of appeals, the court of appeals for the Eighth circuit has alone jurisdiction of this controversy. ”

“ Section 4015 provides, in substance, that 'before drawing the list of eighteen provided for in section 4013, the court shall decide all challenges for cause, which are presented, and, if there are not twenty-four competent jurors, bystanders shall be summoned until the requisite number of competent jurors is obtained, from which said list shall be drawn.'
Under these sections, then, the parties are entitled, after the challenges for cause have been exhausted, to have a list of 18 names drawn according to the terms of the statute, upon which list their peremptory challenges are to be made. ”