West Virginia Rules of Civil Procedure Tawney v. Kirkhart

In West Virginia Rules of Civil Procedure: Tawney v. Kirkhart, 130 W. Va. 550, 44 S.E.2d 634 (1947), the Court recognized that defendants whose interests are the same exercise the right to peremptory challenges "in common." However, where the interests of defendants are hostile, "upon motion and proper showing it is error to decline the statutory number of peremptory challenges to each defendant." 130 W.Va. at 561, 44 S.E.2d at 641. Nevertheless, concluding, in Tawney, that a proper showing for separate peremptory challenges with regard to the defendant railroad company and defendant Kirkhart had not been made, the opinion states: The testimony at the trial fully justifies the statement of counsel for the railroad company that the interests of Kirkhart and their client were conflicting and hostile. There was, however, no showing of that nature before the Circuit Court at the time of the motion nor was the motion accompanied by an offer of such a showing. In this instance an examination of the pleadings possibly would show hostility, but we do not believe the mere statement that conflicting interests exist, without more, required the judge to take the initiative in inspecting the pleadings. If the pleadings are depended upon as the required showing the movant should direct the attention of the court to the reasons for so regarding them. Otherwise it is not error to disregard them. (130 W.Va. at 561-62, 44 S.E.2d at 641.)