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FRED CLARK v. DEBRA L. WHITEN

MAY 27, 1987

FRED CLARK
v.
DEBRA L. WHITEN



BEFORE WALKER, C.J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

This is a paternity action. On appeal we are presented a challenge to the jury's finding of paternity. The matters of support for the child and the mother's attorneys fees are also before us. For the reasons discussed below, we affirm in part and reverse in part.

II.

 On November 19, 1984, Haywood Montrel Whiten was born to Debra L. Whiten, at that time and now an unmarried female. On or about May 14, 1985, Debra L. Whiten filed in the Chancery Court of Warren County her complaint to establish that Fred Clark, an adult resident citizen of Warren County, was and is the father of her child. See Miss. Code Ann. 93-9-1 et seq. (1972). In due course, Clark answered, denying the essential allegations of the complaint and demanding trial by jury.

 On September 10, 1985, the Chancery Court entered an order transferring the matter to the County Court of Warren County" for all further proceedings and trial by jury. "

 On November 5, 1985, the matter was called for trial in the County Court. Two days later, on November 7, 1985, the jury returned a verdict finding" Fred Clark to be the natural father of Haywood Montrel Whiten. "The jury's verdict also assessed Clark with attorneys fees of $1,000.00.

 Pursuant to this jury verdict, the County Court on November 8, 1985, pursuant to this jury verdict entered its order of fillation adjudging Clark to be the natural father of Haywood Montrel Whiten, providing that Clark" will be responsible to Haywood Montrel Whiten as allowed by law. "The order further assessed attorneys fees against Clark.

 Following the overruling of his motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, Clark has appealed to this Court. He assigns as error the refusal of the County Court to empanel a jury of twelve jurors, the overruling of his motion for a new trial, and the assessment of attorneys fees. Debra L. Whiten has cross-appealed the refusal of the trial court to submit to the jury the issue of support for the minor child or to enter

 iudgment thereon.

 III.

 Clark first assigns as error the overruling of his request that a twelve person jury be empaneled. It will be recalled that, though originally filed in the Chancery Court, this matter was transferred to the County Court of Warren County following Clark's demand for trial by jury. The County Court, in accordance with the rules generally applicable, proceeded to empanel a jury of only six persons. See Rule 48 (b), Miss. R. Civ. P. Clark relies upon Miss. Const. Art. 3, 31 (1890) and Miss. Code Ann. 93-9-15 (1972) in support of his claim. Clark confuses the historically familiar with the legally necessary.

 To begin with, Rule 48 (b) provides for a six person jury in County Court. That rule controls unless it is overriden by superior law. Rule 81 (a)(9), Miss. R. Civ. P., provides that, with respect to paternity proceedings such as that before us today, statutory provisions supply the rules of procedure where there is conflict between the two. But when we turn to Section 93-9-15, we see only that defendants such as Clark are entitled to trial by jury. See Metts v. State Department of Public Welfare, 430 So. 2d 401, 405 (Miss. 1983). Nothing in the statute in any way suggests the number of jurors that may be required. If Section 93-9-15 provided for twelve jurors, it would override Rule 48 (b). As written, however, there is no conflict. Accordingly, Rule 48 (b) and its six person juror requirement prevails.

 The same result obtains when we examine our constitution. Section 31 provides for trial by jury in civil cases and authorizes further the less than unanimous verdict. Nothing in Section 31, however, mandates juries of twelve persons in the County Court, or any other court. We make this latter comment in the context of Clark's argument that, because his action was originally brought in Chancery Court, the trial by jury requirement applicable to that court controls in the County Court to which the case was transferred" for administrative convenience in empaneling the jury. "But there is nothing in the Constitution that requires a jury of twelve. See Colgrove v. Battin, 413 U.S. ...


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