Cox v. Moss

Sherwood, Judge, delivered the opinion of the court. This suit originated before a justice of the peace, and on appeal taken to the Circuit Court, the cause was there tried by a jury of six men, resulting in a verdict and judgment for the [434] plaintiff. No consent of the defendant to the trial by that number was entered on the record ; and this was the ground for the motion in arrest, which was filed by the defendant. This motion was overruled, and this ease comes here by appeal ; and the above is the only question presented, by the record. This point has been passed upon in this court, and the decisions thereon are uniform, that unless the constitutional right of the party to a trial by a jury of twelve men be expressly waived by entry .of record, the error, being one of record, may be raised by motion in arrest,whether exceptions, were saved or not. (Vaughn vs. Scade, 30 Mo., 600; Brown vs. Han. & St. Jo. R. R. Co., 37 Mo., 298; Scott vs. Russell, 39 Mo., 407.) Judgment reversed and cause remanded. Judges Wagner and Napton absent, the other J udges'concur.