Fuller v. Johnson

• Decision Date: 05 March 1908
• Citation: 68 A. 977,80 Conn. 493
• Parties: FULLER v. JOHNSON.
• Court: Connecticut Supreme Court

68 A. 977

80 Conn. 493

FULLER

v. JOHNSON.

Supreme Court of Errors of Connecticut.

March 5, 1908.

Appeal from Court of Common Pleas, Hartford County; John Coats, Judge.

Action by Frederick E. Fuller against William S. Johnson. From a judgment for defendant, plaintiff appeals. No error.

William M. Maltbie, for appellant. Charles E. Perkins and James L. Loomis, for appellee.

BALDWIN, C. J. This action was brought on the common counts. The return day was November 6, 1906. On November 20th a bill of particulars was filed, and on December 10th there was filed a request to the clerk to place the cause on the jury docket, which he thereupon did. No issue was joined until January 2, 1907, and all the issues were joined on February 7th. In April the plaintiff moved to have the cause stricken from the jury docket, because no written request to place it thereon was made within 30 days after the return day, nor within 10 days after an issue of fact was joined. This motion the court denied. He then filed a bill of exceptions to the denial, and asked for its allowance, but the court did not allow it.

By Gen. St. 1902, § 720, such an action "shall be entered on the jury docket upon the written request of either party made to the clerk within thirty days after the return day," and, if "an issue of fact is joined after said period, the case may, within ten days after such issue of fact is joined, be entered in the jury docket upon the request of either party made to the clerk," and "may at any time be entered on the jury docket * * * by order of court." The plaintiff's request of December 10, 1906, not being filed until after 30 days from the return day, was as things then stood insufficient to warrant placing the cause on the jury docket. After the lapse of this 30-day period, he had another opportunity to make it a jury case if issue should be subsequently closed, and he should make a due request within 10 days after it was so closed. McKay v. Fair Haven & W. R. Co., 75 Conn. 608, 54 Atl. 923. His request remained in the files until an issue was joined. If a similar request had been filed then, it would have been the duty of the clerk to enter the cause on the jury docket. Noren v. Wood, 72 Conn. 96, 43 Atl. 649. He had already so entered it. The request, never having been recalled, was a continuing authority, and confirmed his act, as soon as the time arrived when ho could have done according to law that which he had previously assumed to do without such authority. The cause was therefore properly tried to the jury. The refusal of the court of common picas to allow the bill of exceptions tendered by the plaintiff, showing the facts above stated, did him no injury, as the facts are fully stated in its special finding.

It has been argued that there was no occasion to state them, because the refusal to transfer the cause to the court docket could not have harmed the plaintiff, or constituted any ground for a new trial, inasmuch as, on whichever docket it stood, he was sure of a fair hearing before an impartial tribunal. We cannot, however, fail to take judicial notice of the fact that parties often have a decided preference as to which mode of trial they desire. The right to a preference by either for a jury trial is secured by the Constitution of the state. The right of either to a...