Hess v. White

• Decision Date: 09 June 1893
• Citation: 33 P. 243,9 Utah 61
• Court: Utah Supreme Court
• Parties: H. A. HESS AND ANOTHER, APPELLANTS, v. MARGARET WHITE, ADMINISTRATRIX, RESPONDENT

33 P. 243

9 Utah 61

H. A. HESS AND ANOTHER, APPELLANTS, v. MARGARET WHITE, ADMINISTRATRIX, RESPONDENT

Supreme Court of Utah

June 9, 1893

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. Hon. Charles S. Zane judge. The opinion state the facts, except that there be several appeals involving this question, all the judges sat together.

Affirmed.

Messrs Richard H. Cabell and Messrs. Ritchie and Ritchie, for the appellants.

Section 17 of the organic act and section 1891 of the Revised Statutes of the United States extend the Constitution over the Territory of Utah. Section 6 of the organic act provides "that the legislative power of said Territory (Utah) shall extend to all rightful subjects of legislation consistent with the Constitution of the United States, and the provisions of this act." This includes the seventh amendment.

The words trial by jury as used therein mean trial by jury as it was understood at the adoption of the Constitution. Miller on Constitution, 492. This amendment extends over the District of Columbia (Callan v. Wilson, 127 U.S. 540) and the territories. Reynolds v. United States, 98 U.S. 145; Webster v. Reid, 11 How. 437; Hornbuckle v Toombs, 18 Wall. 655. The words trial by jury in the Constitution mean a jury which renders a unanimous verdict. Kleinschmidt v. Dunphy, 1 Montana, 130; Aylesworth v. Reece, 1 Montana, 200; Cruger v. Hudson River R. Co., 12 N.Y. 198; Cancemi v. People, 18 N.Y. 128; May v. Railroad Co., 3 Wis. 219; 10 Bacon's Abr. 306, 315; 9 Id. 564; Carpenter v. State, 34 Am. Dec. 116; Kent v. Perkins, 36 Ohio St. 639; Hill v. People, 16 Mich. 355. See, also, Thompson & M. on Juries, 6; State v. Cox, 8 Ark. 436; Work v. State, 2 Ohio St. 296; Brazier v. State, 44 Ala. 387; Turns v. Comm., 6 Metc. 224; Lamb v. Lane, 4 Ohio St. 167; People v. Kennedy, 2 Park.Cr. R. 312; Byrd v. State, 1 How. (Miss.) 163; Redus v. Wofford, 4 Smed. and M. 579; State v. McClear, 11 Nev. 39; Smith v. Railroad Co., 25 Ohio St. 91; Gibson v. State, 16 Fla. 291; Wynchamer v. Cooper, 13 N.Y. 378.

A state legislature has no power, in the absence of constitutional authority, to pass an act fixing the number of the jury at less than twelve in cases civil or criminal, nor to provide that a number of the jury, less than the whole number, can render a verdict in any case where the Constitution gives to the party a right to a trial by jury.41 New Hampshire, 550; Thompson and Merriam on Juries, 10; Norval v. Rice, 2 Wis.23; May v. Milwaukee, etc., R. Co., 3 Wis. 219; Work v. State, 2 Ohio St. 296; Vaugh v. Scade, 30 Mo. 600; Foster v. Kirby, 31 Mo. 496; Allen v. State, 51 Ga. 264; Hemming v. Hannibal, etc., R. Co., 35 Mo. 408; Miller on the Constitution of the United States, 491; Maduska v. Thomas, 6 Kan. 153; Hill v. People, 16 Mich. 351; Com. v. Shaw, 7 Am. Law Reg. 289; Allen v. State, 54 Ind. 461; Dixon v. Richards, 2 How. (Miss.) 771; Bone v. McGinley, 7 How. (Miss.) 671; State v. Van Matre, 49 Mo. 268; State v. Meyers, 68 Mo. 266.

A trial by jury secured to the citizen by the Constitution is a trial according to the course of the common law, and the same in substance as that which was in use when the Constitution was framed. On this point all of the decisions agree. 48 Am. Dec. (note) 186; Reese v. Knott, 3 Utah 454, 455; Miller on the Constitution of the United States, 491; Opinion of Justices of Supreme Court, 41 N.H. 550.

As to the power of a territorial legislature to deprive a party of right of trial by jury, see Graves v. Northern P. R. R. Co., 5 Mont. 556; Webster v. Reid, 11 How. U.S. 461.

If the legislature of a state cannot pass a law, in the absence of constitutional authority, denying or abridging the right of trial by jury it surely will not be said that a territorial legislature can do so in violation of an act of congress preserving to the citizen the right of trial by jury in cases cognizable at common law.

Messrs. Richards, Moyle and Richards, for the respondent.

ZANE, C. J., and MINER, J., BARTCH, J., and SMITH, J., concurred.

OPINION

PER CURIAM

This was an action at law, brought by the appellants against the respondent to recover upon a written guaranty to pay for goods sold and delivered to one Frances Brown. The guaranty was executed by the respondent's intestate. The cause was tried by a jury regularly impaneled. After the jury had deliberated upon their verdict, they brought into court a verdict, signed by ten of their number, but two of the jury dissented from it, and refused to sign it. The appellants objected to the entry of judgment upon this verdict "because the verdict was rendered in a manner not authorized or warranted by the Constitution and laws of the United States applicable to the Territory of Utah but contrary thereto, in that said verdict was not a unanimous verdict, but was agreed to by ten of said jurors only, and is therefore illegal, and of no effect." Judgment was entered upon the verdict, whereupon a motion for a new trial was made, and as ground therefor the same objection was urged. The motion for a new trial was overruled, and appeal taken to this court.

The sole question argued upon appeal is whether a verdict rendered by 10 out of the 12 jurors is legal under the Constitution and laws of the United States and under the laws of the Territory of Utah. The clause of the Constitution relied upon is the seventh article of amendments thereto: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." The laws of the United States applicable are cited as follow: Section 17 of the organic act, which provides "that the Constitution and laws of the United States are hereby extended over and declared to be in force in said Territory of Utah so far as the same, or any provision thereof, may be applicable." This section was approved September 9, 1850. Also section 1891 of the Revised Statutes of the United States, which enacts: "The Constitution and all laws of the United States, which are not locally inapplicable, shall have the same force and effect within all the organized territories, and in every territory hereafter organized, as elsewhere in the United States." Also there was an act in force April 7, 1874, which provided (18 Stat. 27) "that it shall not be necessary in any of the courts of the several territories of the United States to exercise separately the common-law and chancery jurisdiction vested in said courts; and that the several codes and rules of practice adopted in said territories, respectively, in so far as they authorize a mingling of said jurisdictions, or a uniform course of proceeding in all cases, whether legal or equitable, be confirmed; and that all proceedings heretofore had or taken in said courts in conformity with said codes and rules of practice, so far as relates to the form and mode of proceeding, be, and the same are, hereby validated and confirmed: provided, that no party has been or shall be deprived of the right of trial by jury in cases cognizable at common law." At the time this last statute was passed there was a law of the territory of Montana which authorized the rendition of a verdict upon the concurrence of three-fourths of a jury. This law had been enacted in January, 1869.

The law of the Territory of Utah was passed under the grant of legislative power in the organic act, section 6 of which provides "that the legislative power of said Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States, and the provisions of this act," and that "all the laws passed by the legislative assembly and governor shall be submitted to the congress of the United States, and, if disapproved, shall be null, and of no effect." In pursuance of this grant of legislative power, section 493 of the Code of Civil Procedure, which is section 3371 of 2 Comp. Laws 1888, 286, in force August 1, 1884, provided: "When the jury have agreed upon their verdict, they must be conducted into court, their names called by the clerk, and the verdict rendered by their foreman. The verdict must be in writing, signed by the foreman, and must be read by the clerk to the jury, and the inquiry made whether it is their verdict. If any juror disagrees, they must be sent out again; but, if no disagreement be expressed, and neither party requires the jury to be polled, the verdict is complete, and the jury discharged from the case. Either party may require the jury to be polled, which is done by the court or clerk asking each juror if it is his verdict. If any one answer in the negative, the jury must be sent out again. This statute had superseded section 174 of an act approved February 17, 1870, Comp. Laws 1876, 447, which provided: "When the verdict is given, which must be by unanimous agreement, except by the consent of the parties, it shall be read aloud," etc. In 1892 the legislature amended section 3371, supra, to read as follows: "In all civil cases a verdict may be rendered on the concurrence therein of nine or more members of the jury. When the jury have agreed upon their verdict, they must be conducted into court by their foreman. The verdict must be in writing, and signed by their foreman, if he is a concurring juror, and if he is not a concurring juror it must be signed by all the concurring members, and be read by the clerk to the jury, and the inquiry made whether it is their verdict, and the answer may be made by any juror signing the verdict. If more than three jurors dissent, they must be sent out again, but, if not more than three jurors dissent, and neither party requires the jury to be polled, the verdict is complete, and the jury discharged from the...