Barlow v. Daniels & Co.

• Decision Date: 04 April 1885
• Citation: 25 W.Va. 512
• Court: West Virginia Supreme Court
• Parties: Barlow Daniels & Co.

25 W.Va. 512

Barlow v. Daniels & Co.

Supreme Court of Appeals of West Virginia.

Submitted January 22, 1885.

Decided April 4, 1885.

The provision of Section 13 of Article TIT. of the Constitution of this State as amended in 1880, which declares, that "No fact tried by a jury shall be otherwise re-examined, in any case, than according to the rules of common law," applies to cases tried by a jury of six before a justice, and prohibits the re-trial of such cases by the circuit court under the provisions of chapter 8, Acts of 1881.,

The facts of the case appear in the opinion of the Court.

J. W. Kennedy for plaintiff in error.

J. F. Brown and Snyder § Dyer for defendant in error.

Snyder, Judge:

This action wTas originally brought before a justice of Kanawha county by George T. Barlow against F. J. Daniels k Co., to recover $53.85 due by contract; on the demand of the defendants, the case was tried by a jury of six before the justice and a verdict of $47.87 found for the plaintiff, on which the justice gave judgment. The defendants appealed to the circuit court and asked that court to try the case de novo, to which the appellee objected and asked the court to affirm the judgment of the justice, but the court, being of opinion that the statute under which the appeal had been taken was unconstitutional, dismissed the appeal with costs to the appellee. Both parties excepted to this judgment, the appellee because the court refused to affirm the judgment of the justice and the appellants because it dismissed the appeal, and the latter obtained the writ of error to this Court.

The single question presented to this Court is, can an action of this character tried by a jury of six before a justice and taken to the circuit court by appeal be there tried de novo? The solution of this question involves the interpretation of certain provisions of our Constitution and especially the thirteenth section of our bill of rights which is as follows:

" In suits at common law, where the value in controversy exceeds $20.00, exclusive of interest and costs, the right of trial by jury, if required by either party, shall be preserved; and in such suit before a justice, a jury may consist of six persons. No fact tried by a jury shall be otherwise re-examined, in any case, than according to the rules of the common law." Constitution, Article III, Section 13.

In order to fully appreciate the object and importance of this provision it is necessary to refer briefly to its origin and history.

The first authoritative declaration of the principle here contained, is found in the twenty-ninth chapter of "Magna Charta," and declares in effect that, no freeman shall be deprived of his life, liberty or property except "by legal judgment of his peers or the law ot the land," adopted and confirmed by King John, June 19, 1215. This is now and has ever since been the law of England. Before our separation from England the people of the colony of Virginia, on June 12, 1776, passed our bill of rights by which the same principle was reaffirmed in these words:

" That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred." This provision was adopted without alteration by the convention of 1829-30, and re-adopted by the convention of 1850-51, with an amendment inserting the words " of twelve men" after the word "jury." This provision was in force here on June 20, 1863, when the first Constitution of this State went into operation, in which was the following:

" In suits at common law, where the value in controversy exceeds $20.00, the right of trial by jury, if required by either party, shall be preserved. No fact tried by a jury shall be otherwise re-examined in any case than according to the rules of the common law." Constitution, 1863, Article II., section 7.

Our Constitution of 1872 amended and re-adopted this provision in these words:

" In suits at common law, where the value in controversy, exclusive of interest and costs, exceeds $20.00, the right of trial by a jury of twelve nai, if required by either party, shall be preserved; except that in appeals from the judgment of justices, a, jury of a, less number may be authorized by hue; but in trials of civil cases before a justice, no jury shall be allowed. No fact tried by a jury shall, in any case, be otherwise re-examined than according to rules of common law." Constitution, 187:2, Article III., section 13. The italics indicate the new provisions not in the constitution of 1863.

By an amendment adopted in October, 1880, the provision now under consideration was substituted forthe one last above given. Acts of 1883, p. 197.

So far as I have been able to find, West Virginia is the only State which has incorporated in its constitution the provision, that, "No fact tried by a jury, shall be otherwise re-ex-t amined than according to the rules of the common law," This provision was evidently taken from the seventh amendment to the Constitution of the United States which was adopted in 1791, and is still in force as a part of that constitution in these words

"In suits at common law, w7here the value in controversy shall exceed $20.00, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law."

Under the well settled rule that, when a State adopts a constitutional or statutory provision of another State it must be held also to have adopted the judicial construction theretofore placed upon it by the State from which it has been taken, it becomes important to determine the construction given this constitutional provision by the Supreme Court of the United States before it becomes a part of our Constitution.

Mr. Justice Story, delivering the opinion of the court in Parsons v. Bedford, 3 Pet. 446, in substance, says: "The trial by jury is justly dear to the American people. It has been always an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy. The right of trial by jury is, it is believed, incorporated into, and secured in every State constitution in the Union. One of the strongest objections originally taken against the Constitution of the United States, was a want of an express provision securing the rigid of trial by jury in civil cases. As soon as the constitution was adopted this right was secured by the adoption of this seventh amendment. The phrase "common law," found in this amendment, is used in contradistinction to equity and admiralty jurisprudence. The constitution had declared in the third article "that the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States," &c. and to all cases of admiralty jurisdiction. It is well known, that in civil causes in courts of equity and admiralty, juries do not intervene, and that courts of equity use the trial by jury only in extraordinary cases to inform the conscience of the court. When, therefore, we find the amendment requires that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that this distinction waspresent to the minds of the trainers of the amendment. By common, law they meant what the constitution denominated in the third article "law;" not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered. Probably there were few, if any, States in the Union, in which some new legal remedies differing from the old common law forms were not in use; but in which, however, the trial by jury intervened, and the general regulations in other respects were according to the course of the common law. In a just sense, the amendment, then, may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights. And the last clause of the amendment "is a prohibition to the courts of the United States to re-examine any facts tried by a jury in any other manner. The only modes known to the common law to re-examine such facts, are the granting of a new7 trial by the court where the issue was tried, or to which the record was properly returnable; or the award of a venire facias de novo, by an appellate court, for some error of law which intervened in the proceedings." 3 Pet. 440-48.

The above construction of the said amendment was approved and applied in The Justices v. Murray, 9 Wall. 274, in which the court held an act of Congress unconstitutional and void which provided for the removal of a judgment of a State court, in which the case had been tried by a jury, to the circuit court of the United States for a re-trial on the facts and the law.

No act of Congress, and no statute of this or any other State, so far as I know, has ever defined the line of contradistinction between the jurisdiction and rules of courts of common law and of courts of equity and admiralty. The jurisdiction of these respective courts had been well understood before the adoption of this seventh amendment, and no statutory defini-, tion was therefore, deemed necessary. The existing judicial systems of the States had been founded on the principles of the English jurisprudence, and the application of the principles of the common law was universal as the rule of jurisdiction unless altered by local statutes or usage. Hence, we must infer that the phrase " according to the rules of the common law," as employed in this amendment, had reference to the common law of England as adopted in the States. The terms " suits at common law " and " cases in equity," refer oi necessity to the line drawn between the...