De Lamar v. Dollar

• Decision Date: 11 April 1907
• Citation: 57 S.E. 85,128 Ga. 57
• Parties: DE LAMAR v. DOLLAR.
• Court: Georgia Supreme Court

57 S.E. 85

128 Ga. 57

DE LAMAR v. DOLLAR.

Supreme Court of Georgia

April 11, 1907

Syllabus by the Court.

The county court act of 1879, now contained in Civ. Code 1895, § 4193 et seq., in so far as it denies to a party in a case involving $50 or less the right of a trial by jury, is violative of that provision of the Constitution which declares that trial by jury shall remain inviolate.

There is in the county court act above referred to no provision for the impaneling of a jury in a civil case, and hence a party defendant to a case involving $50 or less cannot secure a jury trial in that court by making demand for the same.

There is no law of force in this state authorizing an appeal from the county court to the superior court in cases where the amount involved is $50 or less.

Certified Questions from Court of Appeals.

Action between R. F. De Lamar and Amanda Dollar. From the judgment De Lamar brings error to the Court of Appeals, which certifies questions to the Supreme Court. Questions answered.

D. R Pearce and W. L. & Warren Grice, for plaintiff in error.

M. S Means and M. H. Boyer, for defendant in error.

COBB P.J. (after stating the facts).

1. The present Constitution of this state declares that the right of trial by jury, except where it is otherwise provided in that instrument, shall remain inviolate. A similar provision was contained in the Constitution of 1868. Code 1873, § 5124. No such provision appears in the Constitution of 1865, nor in the Constitution of 1861. In the Constitution of 1798 the language used is: "Trial by jury, as heretofore used in this state, shall remain inviolate." Watkins' Digest, 41. The Constitution of 1789 provided: "Trial by jury shall remain inviolate." Watk. Dig. 29. The Constitution of 1777 provided: "Trial by jury to remain inviolate forever." Watk. Dig. 16. It will be noted that in every constitutional provision on the subject of the inviolability of the right of trial by jury the language is very similar. The Constitution of 1798 contains the words, "as heretofore used in this state," which do not appear in the other instruments; but this really would not affect the interpretation to be placed upon the declaration that trial by jury shall remain inviolate, for each declaration would mean that it must be preserved in the future in all cases in which it was allowed under valid laws existing at the time that the Constitution was adopted. While in order to determine the question as to whether, at the date of the present county court act of 1879 (Acts 1878-79, p. 132), it was competent for the Legislature to deprive a person of the right of trial by jury in a civil case arising out of contract or tort, where the sum claimed is less than $50, it might not be necessary to do more than examine into the different statutes of the state, in existence at that time, defining the jurisdiction of the then existing courts, and ascertaining whether there was a valid statute giving any court of common-law jurisdiction the power to render judgment without a trial by jury, yet a brief review of the history of the subordinate courts having common-law jurisdiction, and the method of trial therein, will not be inappropriate to the present discussion; and the results to be derived from the investigation into the history will at least be a persuasive argument to sustain the conclusion which we have reached.

Trial by jury existed in the colony of Georgia, subject only to the same limitations that surrounded it under the laws of England. In Tift v. Griffin, 5 Ga. 188, Judge Nisbet says: "The right of trial by jury would have been as perfect in the states of this Union, which were British colonies, without a constitutional declaration of that right, as it is now with it; yet, it may be added, not so secure. The right came with the colonists. It was derived from Magna Charta." Magna Charta provided that a freeman should not be amerced "but by the oath of honest and lawful men of the vicinage." Schley's Dig. 40; Barrington's Magna Charta, 216. "By the common law justices of the peace had some criminal jurisdiction, but no jurisdiction whatever of suits between man and man. There were in England, however, courts baron, county courts, courts of conscience, and other petty courts, which were not courts of record, and whose proceedings varied in many respects from the course of the common law, but which were empowered to hear and determine, in a summary way, without a jury, personal actions in which the debt or damage demanded did not exceed 40 shillings." Capital Traction Co. v. Hof, 174 U.S. 16, 19 S.Ct. 580, 43 L.Ed. 873. See, also, 3 Bl. Com. 33 et. seq.; 7 Coke's Inst. 266 et seq.; 4 Min. Inst. (2d Ed.) 190 et seq.; 3 Enc. Laws of Eng. 528. There was established in the colony of Georgia, by a statute passed in 1760, a court of conscience, which had jurisdiction in civil cases involving small amounts. The act establishing this court is not accessible, but we find, from an act passed in 1774 relating to these courts, that trial by jury was had in the cases within the jurisdiction of such courts. Colonial Acts Ga. p. 420. The court of conscience was recognized by the Constitution of 1777, and by it continued in existence; the jurisdiction, however, being by that instrument limited to cases not involving more than pounds sterling10. Watk. Dig. 14. The act of 1760 creating the court of conscience was repealed in 1789. There also existed in the colony a court known as the "court merchant," which was recognized as existing by the Constitution of 1777, and continued in existence by the Constitution of 1789, "subject to such regulations as the General Assembly may, by law, direct." Watk. Dig. 14, 28. This court seems to have been for the trial of controversies arising between merchants, dealers, and others, and shipmasters, supercargoes, and other transient persons. The court was held by the chief justice, or, in his absence, one of the justices, of the general court of pleas, within seven days after a petition was presented to him showing a controversy of the character above referred to. The jurisdiction of the court seems to have been limited as to amount, and the cases were tried by a jury of merchants or other fit persons. We have found no court in existence prior to the Constitution of 1777, which had common-law jurisdiction in civil cases, in which trial by jury was not provided for. The expression "common-law cases," or similar language, which has been heretofore used, or may be used in the further progress of this opinion, is intended to embrace only cases which were the subject of real, personal, or mixed actions, according to the practice of the English common-law courts, and not those proceedings which were not known to the common law, and are only authorized under our statutes, such as possessory warrants and the like.

In 1789 an act was passed revising the entire judiciary system of the state. Watk. Dig. 389. By this act it was provided that the superior court should have jurisdiction to hear and determine all pleas, civil and criminal, by a jury of 12 men. A court of inferior jurisdiction was established in each county, to be called the "inferior county court," having jurisdiction to hear and determine cases at common law, provided that, where the amount claimed exceeded pounds sterling>>50 sterling, the case might be by the defendant removed to the superior court, to be there tried by a common jury, and thereafter by a special jury, if either party should see fit. Any case tried in the inferior court which did not involve an amount exceeding pounds sterling5 could be heard by the justice of the inferior court in a summary way without the solemnity of a jury, but any person dissatisfied with the judgment so rendered could, upon giving security for the debt and costs, enter an appeal to the next regular term of the superior court, and the appeal would then be tried by a jury. In 1797 there was another act passed revising and amending the judiciary system of the state. Under this act all pleas, civil and criminal, were triable in the superior court by a jury of 12 men. The inferior county courts were given concurrent jurisdiction with the superior court in all civil cases except those involving real estate, and in any case tried in the inferior court an appeal was allowed to the superior court, to be there tried by a special jury. Justices of the peace were given jurisdiction in all suits for debt where the amount claimed did not exceed $30. All cases tried before a justice of the peace were subject to be appealed to a jury in that court, consisting of five jurors, whose verdict was final and conclusive between the parties. It will thus be seen that at the date of the adoption of the Constitution of 1798 a trial by jury was allowed at some stage of the case in all cases in all courts having jurisdiction to render judgments in common-law cases. At the date of that Constitution the courts of common-law jurisdiction were the superior, inferior, and justice's courts. Trial by jury was allowed in all of them. A jury was not always allowed in the first instance; but, when this was not allowable, an appeal was allowed, in the trial of which a jury was provided. The right to appeal was, in some instances, subject to the condition of the payment of the costs and the giving of a bond.

In 1816 jurisdiction was conferred upon the mayor's court of Darien in civil cases not involving title to land, where the sum claimed did not exceed $50. Trial by jury was allowed in cases of appeal, but not otherwise. In 1817 the mayor's court of Augusta was given jurisdiction in all civil cases where the Constitution did not vest exclusive jurisdiction in other courts, and cases in that court were tried by a jury of...