Bemis v. Armour Packing Co

• Decision Date: 26 July 1898
• Citation: 105 Ga. 293,31 S.E. 173
• Parties: BEMIS et al. v. ARMOUR PACKING CO. et al.
• Court: Georgia Supreme Court

31 S.E. 173

105 Ga. 293

BEMIS et al.

v.ARMOUR PACKING CO. et al.

Supreme Court of Georgia.

July 26, 1898.

Equity—Right to Jury Trial.

There is. in equity cases, no constitutional right of trial by jury in this state; but such right, so far as it exists, is statutory only.

(Syllabus by the Court.)

Error from superior court, Whitfield county; A. W. Fite, Judge.

Action by the Armour Packing Company and others against C. C. Bemis and D. M. Peeples. Judgment for plaintiffs, and defendants bring error. Affirmed.

Jones, Martin & Jones and R. J. & J. McCamy, for plaintiffs in error.

J. H. McLean, Francis Martin, Martin & White, and I. E. Shumate, for defendants in error.

LUMPKIN, P. J. The Armour Packing Company and others, creditors of the W. O. Peeples Grocery Company, a Tennessee corporation, brought an equitable petition against it and against C. C. Bemis and D. M. Peeples in the superior court of Whitfield county. The ease was referred to an auditor, to whose report numerous exceptions, both of law and of fact, were filed. The court sustained some of the exceptions of law, and overruled the others. It is only necessary in this connection to remark that none of the exceptions sustained by the court were of sufficient importance or materiality to affect the final result; nor do we find that any error was committed in overruling the remaining exceptions of law. The court disapproved all the exceptions of fact, and entered a final judgment in favor of the plaintiffs below. The main and controlling question in the case arises upon the refusal of the judge to submit to a jury the exceptions of fact filed by the plaintiffs in error to the auditor's report. They insisted in the trial court, and earnestly contended here, that it was their constitutional right to have these exceptions of fact passed upon by a jury. It was urged that in so far as the act of December 18, 1894 (Acts 1894, p. 123), providing for the appointment of auditors, prescribing their duties, etc., and the act amendatory thereof, approved December 16, 1895 (Acts 1895, p. 47), denied the right of trial by jury in cases like the present, they were unconstitutional, be-cause in conflict with paragraph 1, § 18, art, C, of the constitution (Civ. Code, § 5876), which declares, "The right of trial by jury, except where it is otherwise provided in this constitution, shall remain inviolate, " etc. This is no new question. It has, in one way or another, been before this court on several occasions. In Mahan v. Cavender, 77 Ga. 118, a majority of this court held that the right to jury trial in equity cases was statutory only. While Chief Justice Jackson did not concur in this view, yet the decision has stood for more...