Labowe v. Balthazor

• Decision Date: 21 April 1923
• Citation: 193 N.W. 244,180 Wis. 419
• Parties: LABOWE v. BALTHAZOR.
• Court: Wisconsin Supreme Court

180 Wis. 419

193 N.W. 244

LABOWE

v.BALTHAZOR.

Supreme Court of Wisconsin.

April 21, 1923.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by Sam Labowe against W. A. Balthazor. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.

Automobile collision; damage to vehicle. The complaint alleges that Sixth street is intersected at right angles by Sycamore and Clybourn streets, all public highways in Milwaukee. On the 12th of March, 1922, the plaintiff, by his agent, was driving an automobile cab, and, while turning around on Sixth street between Clybourn and Sycamore streets, the defendant in his automobile negligently collided with the automobile of the plaintiff, causing damage. The answer charges negligence of the plaintiff and freedom of negligence on the part of the defendant, and counterclaims for damage to defendant's automobile. The case was tried before the municipal court of Fond du Lac county, without a jury, resulting in judgment in favor of the plaintiff in the sum of $737 damages and $82.15 costs. From this judgment defendant appealed to the circuit court for Fond du Lac county, where the judgment of the lower court was affirmed, together with costs of $19.16. The defendant appeals and assigns as errors that chapter 244, Laws 1921, creating the municipal court of Fond du Lac county, is unconstitutional in so far as it requires a fee of $2 for each juror to be deposited by the party demanding a jury trial, before such trial is allowed; that the court erred in entering judgment in excess of the amount demanded in the complaint, the complaint not being amended, in allowing a certain bill for repairs, in allowing loss of profits to the plaintiff, and in allowing depreciation on plaintiff's car.Kelley & Fellenz, of Fond du Lac, for appellant.

Duffy & McGalloway, of Fond du Lac, for respondent.

CROWNHART, J. (after stating the facts as above).

The defendant raises the question of the constitutionality of the provision of the municipal court act (chapter 244, Laws 1921) in so far as said act provides that, in order to obtain a jury in that court, the party demanding the same must advance $2 for each juror on the panel. Such municipal court act provides that either party may demand a jury of either 6 or 12 men, upon the payment to the clerk of $2 per juror. In case such party prevails in the action, he may have the jury fees taxed as costs. Sections 9 and 25. It is made a court of record (section 2), and has original jurisdiction to try all civil cases involving not to exceed $1,000 (section 20). A change of venue is not permitted, but a court commissioner may be called in to try the case on an affidavit of prejudice. Section 22. Appeals are to the circuit court, and heard on the original papers and evidence, except it is provided that the circuit court may in its discretion grant a new trial in furtherance of justice. Section 23. A fee of $3 in cases involving $100 or less, and $4 in cases involving more than $100, must be paid to the clerk before process may issue.

This court has held that the jury trial guaranteed by section 5, art. 1, Const., is the jury trial which existed in the territory at the time of the adoption of the Constitution. Norval v. Rice, 2 Wis. 22;Gaston v. Babcock, 6 Wis. 503. In the Norval Case the court reviewed the common law and said:

“The meaning of the language used in our Constitution must be gleaned from the common law, and this is because of the peculiarity of the language, ‘The right of trial by jury shall remain inviolate;’ that is, it shall continue as it was at the time of the formation and adoption of the Constitution by the people of this state. This right, ‘according to the course of the common law,’ was guaranteed to the people of the Northwest Territory by article 2 of the Ordinance of July 13, 1787”--i. e., “the inhabitants of the said territory shall always be entitled to the benefits * * * of judicial proceedings according to the course of the common law.”

“In State v. Cameron, 2 Pin. 499, Stow, C. J., said: ‘The trial by jury as it existed of old is the trial by jury secured by our national and state Constitutions. It is not granted by these instruments; it is more; it is secured. It is no American invention. Our fathers brought it with them to this country more than two centuries ago, and by making it a part of the Constitution they intended to perpetuate it for their posterity, and neither Legislatures nor courts have any power to infringe even the least of its privileges.’ That language was quoted approvingly by Ryan, C. J., in Re Eldred, 46 Wis. 553, and it was again quoted in Jackson v. State, 81 Wis. 131.” Klein v. Valerius and Another, 87 Wis. 61, 57 N. W. 1115, 22 L. R. A. 609.

Thus the law was well settled when Reliance Auto Repair Co. v. Nugent, 159 Wis. 488, 149 N. W. 377, Ann. Cas. 1917B, 307, came before this court. In that case the civil court act of Milwaukee county was in review, and a section of that act provided that a jury might be had on the payment to the clerk of $12 as the jury fee. In the opinion of the court the Milwaukee county act satisfied the guaranty of the Constitution, and it was there said that--

“The...