dissenting.
Respectfully, I dissent.
The issue here is not as stated by the majority that a party has no vested right to any particular juror but rather concerns whether the plaintiffs were afforded a fair trial when the defendants had two more peremptory challenges than they did. In my view they did not.
The number of peremptory challenges is governed by C.R.C.P. 47(h) which provides as follows:
“Each side shall be entitled to four peremptory challenges, and if there is more than one party to a side they must join in such challenges. Additional peremptory challenges in such number as the court may see fit may be allowed to parties appearing in the action either under Rule 14 or Rule 24 if the trial court in its discretion determines that the ends of justice so require.” (emphasis added)
Defendants do not contend here, nor could they, that they appeared in this action either under C.R.C.P. 14 or C.R.C.P. 24.
The rule as promulgated by our Supreme Court must be strictly construed. Had the Supreme Court desired to permit the trial court the choice to give as many peremptory challenges as it desired to one party, the rule could have so provided as it does in Crim.P. 24(d) which authorizes additional peremptory challenges for every defendant after the first. Nor should the plaintiff here be required to show prejudice as a result of the trial court’s order. “To show actual prejudice, the complaining litigant would be required to discover the unknowable and to reconstruct what might have been and never was, a jury properly constituted after running the gauntlet of challenge performed in accordance with prescribed rule .... ” Kentucky Farm Bureau Mutual Insurance Co. v. Cook, 590 S.W.2d 875 (Ky.1979). See also Sheffield v. Lewis, 268 S.E.2d 615 (Ga.1980).
To hold as the majority does that the error is, in essence, harmless is to give carte blanche to any trial judge to do as he will with granting the number of peremptory challenges to a side for he will know full well he cannot be reversed on that ground.
The rules promulgated by our Supreme Court have the force of law, see Colo. Const., Art. VI, Sec. 21; see also Bruske v. Arnold, 100 Ill.App.2d 428, 241 N.E.2d 191 (1968) and Goldston v. Karukas, 180 Md. 232, 23 A.2d 691 (Md.Ct.App.1942), and they should not be given such cavalier treatment. I would reverse and remand for a new trial as to the defendants Charles Da-Foe and Robert McCurdy.