Ewart v. Kass

• Citation: 95 N.W. 915,17 S.D. 220
• Parties: EWART et al. v. KASS.
• Decision Date: 01 July 1903
• Court: South Dakota Supreme Court

95 N.W. 915

17 S.D. 220

EWART et al. v. KASS.

Supreme Court of South Dakota

July 1, 1903

Appeal from Circuit Court, Beadle County.

Action by Robert Ewart and others, as partners (Ewart Bros. & Baker), against N. J. Kass. From an order referring the case to a referee, defendant appeals. Reversed.

A. W Wilmarth, for appellant. H. S. Mouser and T. H. Null, for respondents.

CORSON J.

This is an appeal from an order of the circuit court referring a case to a referee. The action was instituted by the plaintiffs to recover of the defendant the sum of $4,050, for money alleged to have been loaned and advanced to the defendant, and for labor and services performed by the plaintiffs for the defendant. Defendant, in his answer, denied each and every allegation in the complaint, and for further defense, and by way of counterclaim, he alleged that he delivered to the plaintiffs, in Chicago, at their special instance and request, 257 head of cattle, to be delivered by them in London, England, and there sold for him, at a cost of $10 each; that the plaintiffs, in violation of their agreement delivered 182 head of the said cattle in Liverpool, for which they charged and have retained from the defendant the sum of $4,140.50, expenses from Chicago, Ill., to Liverpool, or the sum of $22.75 each, and that the plaintiffs charged and have retained from the defendant the sum of $2,320.50 in excess of their agreement, no part of which has been paid, and the sum of $2,320.50 is now due and owing from the plaintiffs. The answer contains a number of similar counterclaims for breaches of contract on the part of the plaintiffs, and demands a judgment against them for the sum of $9,974.71 including $5,000 damages for the alleged unlawful and wrongful issuing of the attachment in this action. When the case was called for trial at the March, A. D. 1902, term of the court, the plaintiffs made application for a reference of all of the issues to a referee; the application being resisted by the defendant. The court granted the order, and in it recites that, "Upon examination of the pleadings and issues, finds that the trial of the issues of fact in this case will require the examination of long and numerous transactions between the plaintiffs and the defendant, and that it is a proper case for reference."

The defendant excepted to the order, and contends (1) that the statute of this state authorizing a compulsory reference by the court of an action is in violation of section 6, art. 6 of the state Constitution, which reads as follows: "The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy; ***" (2) and that, assuming that the statute is constitutional, it was error for the court in this case to make the order for the reference, as the pleadings do not show, and the court does not find, that the examination of a long account will be necessary in this case.

We are of the opinion that the defendant is right in his contention upon the second ground stated, and hence we do not deem it necessary in this case to pass upon the constitutional question presented. It will be noticed that the action is to recover from the defendant a sum of money alleged to have been paid out for and loaned to the defendant, and for labor and services performed for the defendant, by the plaintiffs. The answer, it will be seen, denies the allegations of the complaint, and sets up various...