Hall v. Armstrong

• Decision Date: 13 April 1893
• Parties: EDWARD J. HALL v. MARTIN V. ARMSTRONG
• Court: Vermont Supreme Court

26 A. 592

65 Vt. 421

EDWARD J. HALL v. MARTIN V. ARMSTRONG

Supreme Court of Vermont

April 13, 1893

GENERAL TERM, 1893

Book account appealed from a judgment of a justice of the peace. The plaintiff moved for a judgment to account, to which the defendant objected for that he was entitled to a jury trial upon the merits. Heard at the December term, 1892, START, J presiding. The court pro forma sustained the defendant's objection. The plaintiff excepts. The opinion states the case.

Judgment reversed and cause remanded.

C H. Darling for the plaintiff.

Before TAFT, ROWELL, TYLER AND THOMPSON, JJ.

OPINION

THOMPSON

This is an action of book account commenced before a justice court, and which came to the county court by appeal. In the county court the plaintiff moved that judgment be rendered for the defendant to account. No pleadings were filed by the defendant, but he objected to the granting of the motion on the ground that, as a matter of law, he was entitled to a jury trial on the merits of the case. The defendant's objection was sustained and the motion denied, pro forma, to which the plaintiff excepted and the case was passed to this court before final judgment, as provided by the statute.

The only question presented for decision is whether, in an action of book account, the defendant is entitled to a trial by jury on the merits of the case, if he demands it before judgment to account is entered.

The defendant's first contention is that, as R. L. s. 1,057 gives a jury trial in a case of this kind in the justice court, that right comes with the case to the county court, and that by virtue of that section of R. L. he is entitled to a jury trial in the county court, and that R. L., ch. 67, prescribing the procedure for the trial of actions of account, and of book account, applies only to such actions when brought originally to the county court. This contention is unsound. It is well settled that the appeal vacates the justice judgment, and brings the case entire and de nove before the county court, there to be proceeded with in the same manner as if it had been originally returnable to that court. Martin v. Fairbanks, 7 Vt. 97; Fletcher v. Blair, 20 Vt. 124; Chadwick v. Divol, 12 Vt. 499; Proctor v. Wiley, 53 Vt. 406; Bundy v. Bruce, 61 Vt. 619, 17 A. 796. R. L. s. 1,206 provides for the trials of actions of account, and of book account, by auditors, when pending in the county court.

The defendant also contends that article 7 of the amendments to the constitution of the United States gives him a right to a trial by jury in the case at bar. That article provides that "in suits at common law, where the value of the controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." We might dispose of this claim on the ground that the record does not disclose that the value in controversy in this suit exceeds twenty dollars, and therefore no question is raised under the provisions of that article, were it applicable to proceedings in a State court. But it has been many times decided that this article relates only to trials in the courts of the United States. In Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678 (L. Ed. Book 23, p. 678), Waite, Ch. J., says:

"The States, so far as this amendment is concerned, are left to regulate trials in their own courts in their own way. A trial by jury in suits at common law pending in the State courts is not, therefore, a privilege or immunity of national citizenship, which the States are forbidden by the fourteenth amendment to abridge. A State cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the State courts affecting the property of persons must be by jury. This requirement of the constitution is met if the trial is had according to the settled course of judicial proceedings. Murray v. Hoboken L. and I. Co., 59 U.S. 272, 18 HOW 272, 15 L.Ed. 372 (L. Ed. XV. 376). Due process of law is process due according to the law of the land. This process in the States is regulated by the law of the State. Edwards v. Elliott, 88 U.S. 532, 21 Wall. 532, 22 L.Ed. 487 (L. Ed. Book 22, p. 487); Pearson v. Yewdall, 95 U.S. 294, 24 L.Ed. 436 (L. Ed. Book 24, p. 436); Cool. Con. Lim. (4th Ed.), 25; Prof. Jur. 123, s. 83."

The defendant also insists that he is entitled to a jury trial on the merits of this action under art. 12, chap. 1, of the constitution of Vermont, which provides "that when any issue in fact, proper for the cognizance of a jury, is joined in a court of law, the parties have a right to trial by jury, which ought to be held sacred." To the same effect are the provisions of s. 31, chap. 11, of the constitution of Vermont. What is the right guaranteed by these provisions of our contitution? Speaking of the right of trial by jury as preserved in the State constitutions, Cooley says: "The constitutional provisions do not extend the right; they only secure it in cases in which it was a matter of right before." Prof. Pomeroy says: "It is the right of trial by jury which exists and is preserved, and what that right is is a purely historical question, a fact to be ascertained like any other social, legal or political fact. As a constitution speaks from the time of its adoption, the fact of the right to jury trial, which is ascertained to have existed at that time, must necessarily determine the meaning of the clause which recognizes and preserves that right." The courts seem, with great unanimity, to have accepted this general principle of construction, and not to have rested their decisions upon the special language of the clause under consideration. Note to Sedge. Stat. Law (2d Ed.), 487; Prof. Jur. 124, s. 84; note to Flint River Steamboat Co. v. Roberts, 48 Am. Dec. 186."

Art. 13, chap. 1, of the constitution of Vermont, adopted in 1777, was in these words: "That in controversies respecting property, and in suits between man and man, the parties have a right to a trial by jury which ought to be held sacred." It will be observed that the language there used is very broad and somewhat indefinite. Art 14, of chap. 1 of the constitution of 1786, which provided for trial by jury, was substantially the same as art. 12, of chap. 1, of the constitution adopted in 1793. The present form of expression in art. 12 chap. 1, of our constitution, is that adopted in 1793. The change of expression from that used in the constitution of 1777 was intended to define and restrict the loose and general language of that contitution, and to prevent its being misconstrued so as to make jury trials of universal application. Plimpton v. Somerset, 33 Vt. 283.

It thus becomes necessary to inquire whether, at the time of the adoption of the constitution of 1786, or of 1793, the action of book account was in use in this State, and if so whether, at that time, a party to such action was entitled to a trial by jury on its merits.

When or where this form of action originated is somewhat uncertain. It is supposed that it, or a substitute for it, was brought to New England from Holland by a dissenting English minister, not long after the arrival of the Pilgrims. It is said to have existed in all the New England States except, perhaps, Rhode Island. McLaughlin v. Hill, 6 Vt. 20. It is evident that it was in use in this State as early as 1782, and probably long before that date. Among the laws enacted at the session of the legislature held at Manchester, Vt., in October, 1782, we find an act entitled "An act relating to auditors and actions of account." This act provided for the trial of actions of account by auditors to be appointed by the court after judgment to account had been rendered, and it then further provided "that in all actions brought on book accounts, depending before any county or supreme court, the like method" should be taken in appointing auditors to adjust the accounts between the parties as was provided in actions of account. Slade's State Papers, 456.

A long established construction of a statute or a constitution, as a general rule, is entitled to the force of a judicial determination. Boyden v. Brookline, 8 Vt. 284. In Plimpton v. Somerset, 33 Vt. 283, after enumerating some of the cases in which a jury trial cannot be had, Aldis, J., says: "In all these and other similar cases which might be noted, the immemorial practice of proceeding to trial without a jury, in the common law courts of England and this country, has been held conclusive to show that they are not, within the terms of the constitution, "proper for the cognizance of a jury,' and were not intended to be therein included."

This act of October, 1782, was enacted four years before the adoption of the constitution of 1786, and eleven years before the adoption of that of 1793. At no other period of our history were the people ever more jealous and careful in asserting and maintaining their right to a jury trial as they understood it then existed than they were at that time. In view of this fact and the other circumstances connected with the development of the jurisprudence of this State, we are irresistibly led to the conclusion that, as early as 1782, it was settled and generally understood, that in an action of book account the parties were not entitled to a trial by jury on the merits of the case, and that such was the law and the practice at the time of the adoption of the constitution of 1786 and that of 1793. The whole course of legislative enactment and of judicial...