Pelham Mfg. Co. v. Powell

• Decision Date: 05 July 1910
• Citation: 68 S.E. 519,8 Ga.App. 38
• Parties: PELHAM MFG. CO. v. POWELL.
• Court: Georgia Court of Appeals

68 S.E. 519

8 Ga.App. 38

PELHAM MFG. CO. v. POWELL.

Court of Appeals of Georgia

July 5, 1910

Syllabus by the Court.

When a statute confers upon the judge of a court jurisdiction to try the facts, unless jury trial be demanded at the return term noz subsequent demand for a jury trial can thereafter divest the judge of this jurisdiction, though in the meantime the case has been tried once and a new trial granted. The statute relates to cases and not to trials.

(a) The jurisdiction to try the facts in such cases attaches to the judge officially, and may be exercised by any judge lawfully presiding in the court.

(b) The privilege of trial by jury may be made dependent upon a timely demand or other conditions, which, though onerous, do not "totally prostrate the right or render it wholly unavailable."

(c) Unless the statute makes it mandatory for the judge to try the case where a jury is not demanded, he has the discretion nevertheless, of referring the facts to a jury. There was no timely demand for a jury trial in the present case, and the judge did not abuse his discretion in refusing it.

(d) The jurisdiction conferred by statute upon the judge of a city court, to try the facts unless jury trial be demanded in a designated time and way, is to be differentiated from the somewhat similar power sometimes conferred upon judges by stipulations of parties, as to particular trials in which but for their consent, the judge would have no jurisdiction to pass upon the facts.

The verdict is not so wholly without evidence to support is as to justify this court in setting it aside.

Error from City Court of Camilia; A. S. Johnson, Judge.

Action by Z. L. Powell, by next friend, against the Pelham Manufacturing Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Payne Little & Jones and Colquitt & Conyers, for plaintiff in error.

Pope & Bennet, Spence & Bennet, and Cox & Peacock, for defendant in error.

POWELL J.

This is the second appearance of this case in this court. On the former hearing we reversed a judgment in the plaintiff's favor and sent it back for a rehearing. See Pelham Mfg. Co. v. Powell, 6 Ga.App. 308, 64 S.E. 1116. The general nature of the plaintiff's action is stated in the course of the former opinion, and need not be repeated here. When the case went back for a second trial, and while the officers were engaged in collecting up the jurors to fill the panel, evidently with the view of having the case tried by jury, counsel for the defendant entered an objection to the entire array, based on the ground that the jury boxes of the court had not been properly made up. The judge was about to sustain this objection, when counsel for the plaintiff made the point that no jury was necessary, as jury trial had not been demanded. The court, while holding that this point was well taken, nevertheless stated that he would allow a trial by jury if counsel for the defendant would make certain waivers as the summoning of a new jury, so as to prevent a continuance of the case for the term. Counsel for defendant declined to make the waivers, and tendered a demand for jury trial. The judge then announced that he would try the case without a jury, that the demand for jury trial came too late. The defendant therefore made the suggestion that the judge was disqualified to pass on the facts. The judge sustained this point, and the Honorable Albert Sidney Johnson, the judge of the city court of Newton was called off to preside, and he tried the case without a jury. He rendered judgment in favor of the plaintiff. No request for jury trial was presented to Judge Johnson, but, at the conclusion of the evidence, certain written objections to his presiding in the court were presented. These grounds of objection were similar to those raised in the case of G. F. & A. Ry. Co. v. Sasser, 4 Ga.App. 276, 61 S.E. 505, and ruled adversely to the defendant's contention in the decision of the Supreme Court in answer to the certified question propounded by this court in that case. See G. F. & A. Ry. Co. v. Sasser, 130 Ga. 394, 60 S.E. 997.

The portion of the act creating the city court of Camilla, relating to the judge's power to try the case without a jury, is in the following language: "The judge of the city court of Camilia shall have power and authority to hear and determine all civil cases of which said court has jurisdiction, and to give judgment thereon; provided, that any party in any case shall be entitled to a trial by jury upon entering a demand therefor in writing by himself or attorney on or before the call of the docket of the term of said court to which said case is made returnable in all cases where such party is entitled to a jury trial under the Constitution and laws of this state."

It was early held in this state that, as to civil cases "Modern law reform seeks, among other objects, to dispense as much as possible with juries;" that trial by jury is a privilege which may be waived; that when a party has had the opportunity to demand it, and has omitted to demand it, he cannot complain that it has been denied him; that by an act of the General Assembly the privilege may be "clogged with onerous conditions" without offending the fundamental law, unless, indeed, the statute be such as "totally prostrates the right or renders it wholly unavailing." Flint River Steamboat Co. v. Foster, 5 Ga. 194, 48 Am.Dec. 248. The requirement of a demand for jury trial as a condition precedent to the enjoyment of the privilege is no violation of the constitutional right of trial by jury. Sutton v. Gunn, 86 Ga. 652, 12 S.E. 979. If the statute fixes a reasonable time within which the demand must be made, the right is ordinarily lost unless the demand be made within the time prescribed. Sutton v. Gunn, supra; Heard v. Kennedy, 116 Ga. 36, 42 S.E. 509. See, also, Waterman v. Glisson, 115 Ga. 773, 42 S.E. 95;...