Haythorn v. van Keuren & Son

• Decision Date: 22 November 1909
• Parties: HAYTHORN v. VAN KEUREN & SON.
• Court: New Jersey Supreme Court

74 A. 502

79 N.J.L. 101

HAYTHORN

v. VAN KEUREN & SON.

Supreme Court of New Jersey.

Nov. 22, 1909.

Appeal from District Court of Newark.

Action by Dorothea Haythorn, by Charles A. Haythorn, her next friend, against Van Keuren & Son. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Argued June Term, 1909, before SWAYZE, TRENCHARD, and MINTURN, JJ.

Edward M. Colie, for appellant.

Samuel Press and Harry Kalisch, for appellee.

TRENCHARD, J. This cause was tried in the Second district court of the city of Newark before the court and a jury. A verdict was rendered in favor of the plaintiff, and the judgment appealed from by the defendant was entered thereon.

At the trial counsel who appeared for the defendant, before any of the jurors were selected or sworn, objected to proceeding to trial before a jury, and moved that the cause be tried before the court without a jury, basing his objection and motion on the ground that the plaintiff had not demanded a trial by jury until after the return day of the summons. The attention of the trial judge was directed by defendant's counsel to section 4 of the supplement to the district court act approved June 2, 1905 (P. L. p. 494), which reads as follows: "In any proceedings had by virtue of the act to which this is a supplement, the court shall, unless a jury be demanded by either party, at least one day before the return day of the summons, try the issue and give judgment thereon in like manner as in case of a verdict of a jury." The learned trial judge overruled defendant's offer to prove the failure of the plaintiff to demand his jury trial before the return day of the process, and overruled the defendant's objection and denied his motion for a trial before the court, without a jury. These alleged errors of the judge of the district court are specified as reasons for reversal.

Section 4 of the act of 1905 was under review in this court in Home Coupon Exchange Company v. Goldfarb, 74 Atl. 143, and it was there held that the judge of the district court is empowered to try causes without a jury and give judgment, unless a jury he demanded at least one day before the return day of the summons. In that case, however, the constitutionality of the act was not raised nor considered. In the present case therefore, the defendant's objection having been taken in due season, we conceive that if the language of the statute is mandatory, and the statute is one within the power of the Legislature to enact, not infringing any constitutional requirement, the district court judge erred in denying the defendant's offer to prove the plaintiff's failure to make his demand for a jury trial in season, and that as a result of this error the judgment must be reversed.

The act in question is constitutional. In Condon v. Royce, 68 N. J. Law, 222, 52 Atl. 630, section 149 of the district court act (P. L. 1898, p. 612) was under consideration in this court. That section relates to trial by jury in the district court, and in the latter part of the section provides that: "Unless a demand for a trial by jury shall be made at least one day before the time fixed for the trial, the demand for trial by jury shall be deemed to be waived, but the judge of any such court may, in his discretion, grant a venire, notwithstanding the failure of a demand as hereinbefore specified." It was objected in that case that this section was unconstitutional, as to actions in which more than $100 was demanded, among other reasons, because, while providing that either party to an action in a district court might demand a trial by jury, it required such demand to be made at least one day before the time fixed for the trial or be deemed to be waived. Mr. Justice Collins, in writing the opinion of the court, said: "The objection must rest, if anywhere, on the ground that such regulations impair the right of trial by jury guaranteed by the Constitution itself. That fundamental law does not preclude due regulation of the right. All that its mandate requires is a trial by 12 men, impartially selected, who shall unanimously concur in a verdict. (Citing Brown v. State, 62 N. J. Law, 666, 42 Atl. 811.) It would not be an unreasonable regulation of trial by jury, in any court, that it should be afforded only on demand. Such a regulation is peculiarly appropriate in a court where the venire is special. Failure to make the demand is a waiver of the right. Parties may waive their merely private rights, whether constitutional or not, at their pleasure. (Citing Wanser v. Atkinson, 43 N. J. Law, 571, 574; Joy & Seliger Co. v. Blum, 55 N. J. Law, 518, 26 Atl. 861.) Nor is it unconstitutional to prescribe a reasonable limit of time before trial within which the demand must be made."

The pertinent part of section 149 of the district court act under consideration in Condon v. Royce, supra, was amended by chapter 235 of the laws of 1903 (P. L. p. 505) to read as follows: "Unless a demand for trial by jury shall be made, and notice thereof given the clerk of the court at least two days, exclusive of Sundays and legal holidays, before the time fixed for the trial, and unless the party demanding the same shall at the time of making such demand pay the cost of the venire, the demand for trial by jury shall be deemed to be waived; but the judge of any such court may, in his discretion, grant a venire at the expense of the plaintiff, to be taxed in the costs of suit, notwithstanding the failure of a demand as hereinbefore specified." This amendment of 1903 was under consideration in this court in the case of Humphrey v. Eakeley, 72 N. J. Law, 424, 60 Atl. 1097, wherein it was held that the provision of this section that, unless the party demanding a trial...