Nelson v. Steele

• Decision Date: 21 December 1906
• Citation: 12 Idaho 762,88 P. 95
• Parties: ANNA E. NELSON, Plaintiff, v. EDGAR C. STEELE, Judge, Defendant
• Court: Idaho Supreme Court

88 P. 95

12 Idaho 762

ANNA E. NELSON, Plaintiff, v. EDGAR C. STEELE, Judge, Defendant

Supreme Court of Idaho

December 21, 1906

This is an application in this court for a writ of mandate to compel the district judge to submit certain questions of fact arising on the return to an application for a writ of mandate to a jury.Writ is denied and the case dismissed.

Peremptory writ denied and the application dismissed, with costs in favor of the defendant.

Stewart S. Denning and William E. Lee, for Plaintiff.

I. N Smith, for Defendant.

SULLIVANJ. Ailshie, J., concurs.STOCKSLAGER, C. J., Dissenting.

OPINION

SULLIVAN, J.

This is an application for a writ of mandate to compel the judge of the district court of the second judicial district of this state to submit the issues of fact made by a petition for a writ of mandate and the return made thereto to a jury.It appears from the petition that the village of Kendrick is a municipal corporation, duly organized and existing under the laws of the state of Idaho and that the plaintiff, Anna E Nelson, was the duly appointed, qualified and acting treasurer of said village; that the village trustees claimed that she did not render an account to the trustees at the end of each month under oath showing the state of the treasury at the date of said account and the balance of money in the treasury as she was required to do by the provisions of section 64 of "An act to provide for the organization, government and powers of cities and villages," approved February 10, 1899, and because of such alleged failure the village trustees declared said office vacant and filled the vacancy by appointment; thereupon the said Anna E. Nelson refused to deliver over to such appointee the records, moneys, etc., belonging to said office.In that case, the answer to the petition put in issue several of the allegations of the petition, and especially the one alleging that the defendant had failed to render a monthly account of the condition of her office.When the matter came on for hearing she demanded a jury, and the judge refused to grant her one and heard the matter and granted the peremptory writ; thereupon she made application, in this proceeding, to the court for a writ of mandate directed to the district judge to compel him to submit the questions of fact raised in that proceeding to a jury.

The only question submitted for our decision is whether, under the provisions of section 4982, Revised Statutes, she is entitled, as a matter of right, to a jury trial in that proceeding.Said section is as follows: "If an answer be made which raises a question as to a matter of fact essential to the determination of the motion and affecting the substantial rights of the parties, and upon the supposed truth of the allegation of which the application for the writ is based, the court may, in its discretion, order the question to be tried before a jury and postpone the argument until such trial can be had and the verdict certified to the court.The question to be tried must be distinctly stated in the order for trial, and the county must be designated in which the same shall be had.The order may also direct the jury to assess any damages which the applicant may have sustained in case they find for him."

Counsel for plaintiff cite, in support of the contention that plaintiff is entitled to a jury trial on the questions of fact in mandamus proceeding, Chamberlain v. Warburton, 1 Utah 267, State ex rel. McCalla v. Turnpike Co.,97 Ind. 416, and other decisions.The case in 1 Utah was decided in 1875, when Utah was a territory, and the court seemed to rest that decision upon the seventh amendment to the constitution of the United States, which provides that in suits at common law, where the value in controversy shall exceed $ 20 the right of trial by jury shall be preserved, and held that that right could not be abridged by legislation or by the discretion of the court or judge.That proceeding was brought to compel the appellant to deliver over to him (the petitioner) the papers, books and records appertaining to the office of the clerk of the probate court of Tooele county, and claimed damages in the sum of $ 500.The court there held that a trial by jury was a constitutional right.The Indianacase, supra, was an application for a writ of mandate to compel said turnpike company and the officers thereof to transfer certain stock on the books of said corporation to the plaintiff.The answer to the alternative writ put in issue certain facts which the court refused to submit to a jury for trial, and under the provisions of section 1171 of the statutes of Indiana the supreme court held that the plaintiff was entitled to a trial by jury.Said section is as follows: "Whenever a return shall be made in such writ, issues of law and fact may be joined; and like proceedings shall be had for a trial of issues and rendering judgment as in civil actions," and the court stated: "If, therefore, under our code, as in this case, an issue of fact is found upon matters contained in a return to an alternative writ of mandate, it stands for trial as an ordinary civil action in which a jury may be demanded by either party"; and held that the circuit court erred in overruling the relator's demand for a jury.That case is not in point, for the reason that the statute expressly provides that issues of fact in such cases must be tried to a jury when demanded.

The case of Chumasero v. Potts,2 Mont. 242, decided in 1875, is a well-considered case, and was decided during the territorial days of Montana.It is there held that a proceeding in mandamus is not a case at common law or a civil action under the civil practice act of that state and that a trial by jury in such proceedings is discretionary with the court; that to call that proceeding an action or suit at law would be a misnomer.In Dutten v. Village of Hanover,42 Ohio St. 215, which was an application against the village council of Hanover to compel that body to order an election as required by certain sections of the statute, it was held that the issue made by the answer was not of right triable by a jury.Atherton v. Sherwood,15 Minn. 221, 2 Am. Rep. 113, was an application for an alternative writ of mandate directed to Sherwood, commanding him to deliver to the relator the seal, books, records, papers and all other things whatsoever belonging...