Connor v. Salt Lake City. held it was prejudicial error for the judge of one department engaged in the trial of a criminal case, having its own regular panel of jurors present before it, to place in the jury box the names of jurors regularly drawn for another department, and to impanel the jury therefrom. The question herein considered was therein neither involved nor decided, but it was intimated that a general panel might be practicable and might be drawn in counties having two or more departments, for use in all the departments. This appears from the opinion, where it was said: "The question as to whether or not, where there are two or more departments of the superior court in any county, the judges thereof may unite in drawing one panel for general service in all of said departments, is not here involved, and need not here be decided, for such a course was not followed as to the jurors in the case at bar. Here the judge of each department had regularly drawn his own panel for service in his own department. Such panels were drawn at different times, and constituted separate and distinct panels, which could be brought together and joined only by some subsequent order, for which the statute furnishes no authority. The method suggested of one general panel may be practicable in some counties having two or more departments-a question not necessary here to decide-but it is clear that, to make it possible, the jurors must all be drawn at the same time, and the panel so drawn and summoned must at all times be used as one panel." None of the cases cited by the appellant on this point militate against the views we have expressed. 2 Nor is the position of the appellant that it was entitled to have the entire panel of jurors available for the selection of the jury in this case sound. If this were imperative as to a general panel in the trial af civil causes, then, as may easily be observed, the court, after submitting one case to a jury, would be unable to proceed with another until a verdict had been returned in the case submitted, although there might Connor v. Salt Lake City. be plenty of idle and competent jurors from whom another satisfactory jury could be selected. When the length of time which juries frequently consume in arriving at their verdicts is considered, the great delay in the trial of causes which would thus be occasioned is obvious. We are aware of no law in this State that would warrant such a practice. The parties to every case at law may demand a fair and impartial jury to be selected from the panel of jurors drawn for service in the court where the case is to be tried, but whether such jury be selected from the entire panel or only a portion. thereof is immaterial. If the jurors constituting the jury are competent, fair, and impartial, it is all that the law requires and the litigants can demand. This is doubtless so as to a general panel of jurors. As to a special venire it may be otherwise. 3 The appellant also contends that the court erred in admitting in evidence the notice of claim for damages presented to the city council to be audited and allowed. The objection to the notice was that it did not sufficiently describe the place where, nor sufficiently designate the time when, the accident occurred. In this class of cases notice is required to be given to the city council by statute, which, inter alia, provides for the presentation of claims resulting from defective, unsafe, dangerous, or obstructed sidewalks, and the notice must describe the "time, place, cause, and extent of the damages or injury." Section 312, Rev. St. 1898. And a failure to present a claim to the city council in the manner provided by the statute is made a "bar and answer to any action or proceeding against a city." Section 313, Rev. St. 1898. The notice in question, so far as material here, reads: "I hereby present to the City Council of Salt Lake City, a claim for damages for personal injuries by me sustained, on or about January 15, 1902, while walking on the sidewalk at and along First West Street, between Seventh and Eighth South, in said city, through the negligence of said city in suffering and permitting said sidewalk at Connor v. Salt Lake City. said place to be out of repair and obstructed, and suffering and permitting a fence, fencing material and obstructions to be upon and along the said sidewalk.” While this notice was not drawn with such particularity as proper caution would suggest, still we do not think it is fatally defective. In determining the sufficiency of such a notice the court is not bound by its terms alone, but may examine it in the light of extraneous evidence showing the situation and surroundings and thus determine whether it sufficiently apprised the municipality of the location and nature of the alleged defect or obstruction which caused the accident. Doubtless the principal purpose of the notice is to afford the proper officers an opportunity to look into the facts and circumstances connected with the occurrence; to preserve the evidence of the existing conditions; to determine the liability of the municipality; and, in case liability exists to effect a settlement without resort to litigation. When therefore, such a notice is not misleading, but advises the municipality promptly of the accident and claim, so as to afford an opportunity for investigation, it is sufficiently definite, and satisfies the purpose and requirements of the law. It is true, in this case the accident is stated in the notice to have occurred "on or about January 15, 1902," the precise time not being stated, but the evidence shows that the occurrence did actually take place on the night of the day mentioned, and there is nothing to show that any other accident happened on or about that time or at that place. Nor is it claimed or shown that any officer was in any way misled in any investigation because of the failure to state the exact time. The statement as to time, therefore, cannot be held to have been prejudicial. So the notice fails to state the exact spot where the accident occurred, simply stating that it happened on "First West between Seventh and Eighth South" streets; but both the notice and the evidence show that the obstruction was of such a character that no officer, in the exercise of ordinary care, could walk or drive along the street at the place stated without observing Connor v. Salt Lake City. the dangerous condition of the sidewalk where the injury occurred. It is clear that the notice did not mislead the municipality, and considering it in its entirety, we are of the opinion that it was sufficiently definite to subserve the purpose of the statute, and that it was properly admitted in evidence. On similar questions other courts have ruled likewise. Burdick v. Richmond, 16 R. I. 502, 17 Atl. 917; City of Lincoln v. O'Brien, 56 Neb. 716, 77 N. W. 76; Rusch v. City of Dubuque, 116 Iowa 402, 90 N. W. 80; Owen v. City of Ft. Dodge (Iowa), 67 N. W. 281; Lyman v. Hampshire, 138 Mass. 74; Lowe v. Inhabitants of Clinton, 133 Mass. 526; Brown v. City of Owosso (Mich.), 85 N. W. 256; Harder v. City of Minneapolis, 40 Minn. 446, 42 N. W. 350. The appellant further contends that the court erred in refusing to direct a verdict in favor of the defendant. This assignment of error is predicated upon two grounds, namely, the insufficiency of the notice of claim and failure of proof showing negligence on the part of the defendant. The answer to this contention is that, as we have seen, the notice was sufficient under the statutes, and the evidence respecting the negligence of the municipality was of such a character as to render the submission of the case to the jury imperative. The court therefore committed no error in this regard. Nor do we think the court erred in refusing, under the facts and circumstances of this case, the several requests of the defendant to charge. The jury appears to have been properly instructed upon all material points. Upon careful examination of the record we find no reversible error. The judgment is affirmed, with costs. BASKIN, C. J., and MCCARTY, J., concur. Smyth v. Reed. DENNIS A. SMYTH, Appellant, v. CHARLES R. REED and ANNIE S. REED, Respondents. No. 1559. (78 Pac. 478.) Deed Construed and Held a Conditional Sale. Where R. deeds property to F., and by contemporaneous agreement it is provided that, on payment to F. by R. of a certain sum by a certain day, F. will reconvey the property, and time is expressly made of the essence of the contract, and it is declared that, in default of the payment on or before such time, the agreement shall be null and void, and R. does not promise or bind himself to make the payments, there is a conditional sale, not a mortgage. (Decided November 15, 1904.) Appeal from the Second District Court, Weber County-Hon. H. H. Rolapp, Judge. The opinion states the facts and nature of the action. From a decree in favor of the defendants, the plaintiff appealed. REVERSED. W. L. Maginnis, Esq., for appellant. The evidence establishes a conditional sale-not a mortgage. Nowhere in the agreement was there any debt created in favor of the plaintiff's grantor against the defendants and nowhere in the agreement do the defendants assume any obligation to pay plaintiff's grantor any sum of money, and before an absolute deed can be held to be a mortgage, the relation of the debtor and creditor must be shown to exsist at the time of the execution of the deed and the agreement to reconvey. Carroll v. Tomlinson, 61 N. E. 484; Farmer v. Grose, |