Barkwell v. Chatterton

• Decision Date: 29 August 1893
• Citation: 4 Wyo. 307,33 P. 940
• Parties: BARKWELL v. CHATTERTON
• Court: Wyoming Supreme Court

33 P. 940

4 Wyo. 307

BARKWELL v. CHATTERTON

Supreme Court of Wyoming

August 29, 1893

Commenced in District Court April 7, 1890.

ERROR to District Court of Carbon County, HON. JESSE KNIGHT, Judge.

This was an action brought by Elizabeth A. Barkwell against Fenimore Chatterton for the recovery of damages for alleged conversion of certain cattle. A motion for change of venue was presented by plaintiff and the same was granted, the amount of the undertaking being fixed by the court. No undertaking was filed. Defendant moved to dismiss the action for that reason. Plaintiff also verbally moved to dismiss the action without prejudice. The motion of plaintiff was denied and that of defendant sustained, to which rulings exceptions were preserved. The case had been regularly at issue on petition and answer. Plaintiff brings error.

Affirmed.

Potter & Burke, for plaintiff in error.

The provisions of Section 3401, Rev. Stat. 1887, requiring the change of venue to be deemed abandoned, and the action discontinued, upon failure to furnish the undertaking, if the application and failure is by the plaintiff, allows the court no discretion, and is an assumption of judicial power by the legislature. It directs the judgment to be rendered. (Davis v. Menasha, 21 Wis. 491; Taylor v Place, 4 R.I. 324; Searcy v. Turnpike Co., 79 Ind. 274; Denny v. Mattoon, 2 Allen, 379; Gray v. Hermance, 5 Cal. 73; Saunders v. Cabanis, 43 Ala. 173; Weaver v. Lupsley, 43 Ala. 224; Lanier v. Gallatas, 13 La. An., 175; Young v. State Bk., 4 Ind. 301; Merrill v. Sherborne, 1 N.H 199; Lewis v. Webb, 3 Me. 326; Denham v. Lewiston, 4 Me. 140; De Castellux, 15 Pa. 18; Miller v. State, 8 Gill (Md.), 145; Ratcliff v. Anderson, 31 Gratt., 105; Greenough v. Greenough, 11 Pa. 489; Pryor v. Downey, 50 Cal. 388; O'Connor v. Warner, 4 W. & S., 223; Reiser v. Fund Asso., 39 Pa. 145; Plumer v. Board, 46 Wis. 163; In re Splane, 123 Pa. 527; Cooley Const. Lim., 174-176.) The statute has the effect to deprive plaintiff of her property without due process of law. (Clark v. Mitchell, 64 Mo. 564; Atchison, etc., Ry. v. Baty, 6 Neb., 37; Taylor v. Porter, 4 Hill., 140; Hoke v. Henderson, 4 Dev. (N. C.), 15; Pryor v. Downey, 50 Cal. 388; Jones v. Perry, 10 Yerg., 59; Stuart v. Palmer, 74 N.Y. 184; Cooley Const. Lim., 353-4.) The statute ignores the right of the parties to a jury trial. It was error to dismiss the action for the reason that the venue had not been changed. The order was made conditional upon the giving of a bond. The statute denies administration of justice and is therefor violative of Sec. 8 of Art. 1 of Const. (St. L. I. M. & S. R'y v. Williams, 49 Ark. 492.) The legislature may provide for a change of venue upon conditions, but the penalty operates as a complete denial of justice. The court ought to have permitted a dismissal of the action upon application of plaintiff. (Rev. Stat., 2661.)

D. H. Craig and F. Chatterton, for defendant in error.

The proceedings in the case prior to the motion of plaintiff to dismiss without prejudice took the case out of the provisions of Sec. 2661, Rev. Stat., and the case was then only affected by Section 3401 relating to change of venue. The two sections do not conflict with each other. The court was required to consider the change of venue abandoned, and order the case discontinued. The statute is valid. It provides a rule of procedure, which the courts cannot dispense with. (Cronkhite v. Bothwell, 3 Wyo. 739; Hughes v. Jackson, 12 Md. 450; Owen v. Ranstead, 22 Ill. 173; Green v. Elbert, 137 U.S. 611-21.) The right to prescribe such rule of procedure is clearly within the power of the legislature. (Oliver v. McClure, 28 Ark. 555; Griffin's Ex. v. Cunningham, 20 Grat., 31.) To be unconstitutional the statute must not only be against the letter and the spirit of the constitution (McCormick v. Alexander, 2 Ohio 66; People v. Fisher, 24 Wend., 220; State v. Staten, 6 Cald., 233; Walter v. Cincinnati, 21 Ohio 14), but also clearly in conflict with it. (State v. Cincinnati, 20 O. S., 283; R. R. Co. v. Clinton Co., 1 O. S., 77; Cochran v. Van Surley, 20 Wend., 381; People v. Gallagher, 4 Mich. 244; Benson v. Mayor, etc., 24 Barb., 252; Cooley's Const. Lim., 4th Ed., p. 204, note 3.) There was not an absence of due process of law. (Westurelt v. Gregg, 12 N.Y. 209; State v. Staten, 6 Cold., 233; Walker v. Sauvinett, 92 U.S. 90.)

CONAWAY, JUSTICE. GROESBECK, C. J., and CLARK, J., concur.

OPINION

CONAWAY, JUSTICE.

Plaintiff in error, who was also plaintiff in the district court, made application in that court for a change of venue. The change was granted on January 19, 1891. But the case never was transferred to any other court. On May 25th, 1891, defendant filed a written motion to "dismiss the above entitled cause" on account of the failure of plaintiff to file her bond on change of venue. On May 25, 1892, plaintiff made "her verbal motion in open court to dismiss this action at her own costs without prejudice." This motion was overruled by the court, "and thereupon at the said last mentioned date the motion of the defendant filed on the 25th day of May, 1891, to dismiss this action came on for hearing and was argued by counsel and the same was by the court sustained and this action was thereupon dismissed," etc.

The quotations are from the bill of exceptions. The action of the court upon each of these motions and in discontinuing the action of plaintiff at her cost is assigned as error. In various parts of the record the words dismiss and discontinue are used interchangeably.

The statute authorizing a change of venue in civil actions makes it incumbent on the party applying for the change to pay the costs thereof within ten days "after the order directing the change." It also contains the following proviso:

"Provided, however, That the change of venue shall be deemed abandoned unless the applicant shall also within the ten days aforesaid give an undertaking to the opposite party, with sureties to be approved by the judge of the court to the effect that he will pay all costs that may be adjudged against him in such case; and if the abandonment is by the plaintiff the cause shall be considered discontinued and the costs taxed against said plaintiff and judgment therefor rendered. And if the abandonment is by the defendant he shall be adjudged in default, and whatever pleadings he may have on file disregarded, and the plaintiff may prove his case as in other defaults."

The applicant for a change of venue in this case was the plaintiff, and the required bond was never given. And under this statute the court on motion of the defendant, dismissed the action. Objection is made to the form of the order granting the change. It reads "And it is now ordered by the court that when the plaintiff gives bond in the amount of $ 300.00 that the place of trial be changed to the county of Sweet-water." It is objected that this is a conditional order and that the condition on which the order was to take effect was never performed, and the order is therefore of no effect and the action not subject to dismissal under this statute. But it is to be observed that the condition expressed in the order is one of the conditions established by the statute. Putting it in the order gave it no additional effect. It was the duty of the court to fix the amount of the bond. That this was done by the same order by which the change of venue was allowed does not seem to be important.

This statute is assailed on behalf of plaintiff in error as unconstitutional. It is claimed that it is an assumption of judicial power by the Legislature. Counsel say in their brief, "If the Legislature can direct a certain judgment to be rendered in this instance it may exercise that prerogative in all cases, and the courts, then, will perform merely perfunctory duties, as an agency of the legislative department." As to this it is only necessary to say that the law in question is a general law and that it was passed a long time before this controversy arose.

Again, counsel say, "This statute denies in terms the administration of justice to the party whose application for change of venue is to be deemed abandoned." Also that the statute denies the right of trial by jury to such party. These propositions are true in this case only in the sense in which they are true in any case where a plaintiff's action is dismissed for his failure to prosecute it in the manner required by law. Such instances are of constant occurrence, and the validity of laws authorizing such proceeding cannot be doubted. Neither the administration of justice nor the trial by jury has been denied the plaintiff in this action. Both were available to her on the same terms as to all parties, merely by pursuing the legal course to secure a hearing on the merits of her cause or a trial by jury if she desired it.

The right of this statute and the hardship it may result in is urged; and on this branch of the argument it is assumed that the dismissal of the action at plaintiff's costs is a bar to another...