Corthell v. Mead

• Decision Date: 05 February 1894
• Parties: CORTHELL et al. v. MEAD, Justice of the Peace.
• Court: Colorado Supreme Court

35 P. 741

19 Colo. 386

CORTHELL et al. v. MEAD, Justice of the Peace.

Supreme Court of Colorado

February 5, 1894

(Syllabus by the Court.)

Error to district court, Rio Grande county.

Action by John L. Corthell and another, as Corthell Bros., against Marvin Mead, a justice of the peace, for mandamus. The writ was denied, and plaintiffs bring error. Reversed.

The other facts fully appear in the following statement by ELLIOTT, J.:

Petition for writ of mandamus to compel respondent, as justice of the peace, to enter judgment in accordance with the verdict rendered by a jury in a certain proceeding before said justice. The district court denied the writ. Petitioners seek a reversal of the district court judgment by writ of error from this court. The facts out of which the application for mandamus arises are, in substance, as follows: Certain persons, doing business as copartners under the firm name of the La Jara Hardware Company, brought suit before a justice of the peace against one E. S. Corthell. A writ of attachment was issued, and a stock of goods was levied on of the value of $477.67, as stated in the return of the constable. Before the trial of the attachment, John L. and Elmer L. Corthell doing business as Corthell Bros., filed affidavits before the justice, claiming the attached property as their own. A trial of the right of property was had by a jury of three, no greater number being demanded by either party. The jury after hearing the evidence, returned a verdict as follows 'We, the jury, find judgment in favor for the Corthell jury, find judgment in favor for the Corthell The justice of the peace received and recorded the verdict, and discharged the jury. Three days afterwards, upon motion of the plaintiffs in the attachment suit, (defendants in the trial of the right of property,) the justice made an order purporting to arrest the judgment. He also refused to enter judgment upon the verdict of the jury, and dismissed the case; that is, the proceeding for the trial of the right of property. In the main case, plaintiffs recovered judgment against the defendant for the full amount of their demand,--$105.60.

C. M. Corlett, for plaintiffs in error.

Ira J Bloomfield, for defendant in error.

ELLIOTT J., (after stating the facts.)

Plaintiffs in error (claimants of the attached property, and petitioners for the writ of mandamus) contend that they were and are entitled to have judgment rendered in the justice's court in accordance with the verdict of the jury. They insist that the action of the justice of the peace in assuming to arrest the judgment upon the verdict, and in dismissing their claim to the property, was and is void; that his refusal to enter judgment in their favor was the refusal to perform an act which the law specially enjoins upon him as a duty resulting from his office; and that they have no plain, speedy, and adequate remedy in the ordinary course of law, etc. Defendant in error (the justice of the peace, and respondent in this mandamus proceeding) claims that the trial of the right of property was a nullity; that a jury of three was not a lawful jury; that, as justice of the peace, he had no jurisdiction of the attached property, the value thereof being in excess of $300; that petitioners had a remedy by appeal from the judgment dismissing their claim to the property; and that mandamus is not a proper remedy, under the facts and circumstances of the case.

1. Was the trial of the right of property by a jury of three a nullity? Trial by jury in civil cases is not guarantied by the constitution of this state. In an attachment case before a justice of the peace, if any person other than the defendant claims the attached property, the statute provides for a 'trial of the right of property.' Such trial is placed upon the same footing as other trials; that is, either party (the plaintiff or the claimant) may demand a jury trial, or the trial may be by the justice. Gen. St. §§ 1958-1962, 2011. Formerly, section 1958 stated a jury of six as the minimum number, but, as amended, (Sess. Laws 1889, p. 221,) it states three as the minimum number. Conceding that this amendment does not affect section 1959, we are of opinion that neither section is so far mandatory in respect to the number of jurors as to vitiate a trial in a civil case by any number that the parties may agree upon, or accept without objecting to the number. The answer of respondents sets forth a copy of his docket entries, showing that, at the time appointed for the trial of the right of property, the parties (claimants and plaintiffs) appeared with their attorneys, respectively, and thereupon the claimants demanded a jury of three. Plaintiffs made no objection to this demand. A venire was accordingly issued, and three persons were summoned as jurors, and sworn without objection to try the case. After the jury was sworn, not before, the attorney for plaintiffs 'objected to any jury in the case.' The objection was to any jury, not the jury. No objection was made on account of the number of jurors, either before or during the trial; nor was any greater number demanded by either party at any time. Under such circumstances, both parties must be held to have accepted the jury composed of three persons. Plaintiffs, having had due notice and opportunity, should have objected to the number of jurors, if at all, before the claimants were put to the expense of summoning, impaneling, and swearing the jury. Not having done so, they must be held to have voluntarily acquiesced in the usual jury of three, as provided by amended section 1958, and to have waived their right to insist upon a jury of six, under section 1959. In civil cases, where private interests only are involved, it is well settled that a party may waive his statutory rights. Proff. Jury Trials, § 110; Thomp. & M. Juries, § 8 et seq.; Irwin v. Crook, 17 Colo. 16, 28 P. 549. The case of Moore v. State, 72 Ind. 358, cited by counsel for respondent, is not in point. It relates to a criminal case, in which a verdict rendered by a jury of six persons was held to be a nullity. In other respects the decision fully confirms the views hereafter expressed in this opinion.

2. Was the trial of the right of property a nullity, and was the verdict void by reason of the value of the attached property? The value of the attached property was stated by the constable in his return to be $477.67. The levy may have been somewhat excessive; but an officer must, as a rule, levy upon property of somewhat greater value than the amount stated in his writ, else sufficient money may not be realized on forced sale to satisfy the judgment to be rendered, with costs. If a justice's writ should specify $300 as the amount of a plaintiff's demand, and the officer should levy upon property in excess of that sum, it is not contended that the levy would be invalid because of such excess. Why, then, may not a third party claim such attached property, and have his claim thereto tried and determined as provided by the statute? Must he necessarily be driven to an action by replevin? To hold that the claimant may not avail himself of the special statutory proceeding is to hold that the justice of the peace has jurisdiction over property in excess of $300 for the purpose of satisfying the claim of the attaching creditor, but not for the purpose of releasing such property, and restoring it to the rightful owner in case it has been wrongfully attached. Thornily v. Pierce, 10 Colo 250, 15 P. 335, is cited by counsel for respondent. That was an action of replevin, brought before a justice of the peace. On appeal in the county court, the property was found to be of the value of $365. The plaintiff did not remit, nor offer to remit, the excess over $300, and judgment was rendered for the full amount. On error, this court held that the county court should have dismissed the suit, the value of the property in controversy being in excess of the jurisdiction of the court where the action was originally brought. There is a distinction between a suit in replevin and a trial of the right of property upon a claim made by a third party in an attachment case. A replevin suit is an original proceeding. The plaintiff sues out the writ, and causes the property to be taken in custodia legis. He invokes the jurisdiction of the court in a matter wherein the title to the property, and the value thereof, are of the very gist of the controversy. In such an action the law limiting the jurisdiction of justices of the peace to $300 is particularly applicable. But the filing of an affidavit claiming attached property by a third par...