Randall v. Kelsey

• Citation: 61 P. 515,7 Idaho 168
• Parties: RANDALL v. KELSEY
• Decision Date: 29 May 1900
• Court: United States State Supreme Court of Idaho

61 P. 515

7 Idaho 168

RANDALL v. KELSEY

Supreme Court of Idaho

May 29, 1900

JURORS FEES-AUTHORITY OF COURT TO REQUIRE DEPOSIT.-Under the statutes of this state, a court is not authorized to make a rule requiring a litigant to deposit jurors' fees as a condition precedent to the right of a trial by jury.

(Syllabus by the court.)

APPEAL from District Court, Elmore County.

Reversed and remanded. Costs of this appeal awarded to the appellant.

W. C Howie, for Appellant.

An issue of fact must be tried by a jury unless a jury is waived, in which case it must be tried by the court. (Rev Stats., secs. 4629, 4771-4778; Biggs v. Lloyd, 70 Cal. 447, 11 P. 831; Swasy v. Adair, 88 Cal. 179, 25 P. 1119; Farwell v. Murray, 104 Cal. 464, 38 P. 199; Meeker v. Gilbert, 3 Wash. Ter. 369, 19 P. 18; Conneau v. Geis, 73 Cal. 176, 2 Am. St. Rep. 785, 14 P. 580; Pleyte v. Pleyte, 1 Colo. App. 70, 28 P. 23; and the court of District of Columbia in Hill v. Neale, 27 Wash. L. R. 235.)

E. M Wolfe, for Respondent.

The probate court had a rule requiring the payment of such fees in advance. The probate court had a right, under the statute, section 2137 of the Revised Statutes of Idaho to demand the deposit of the fees in advance. Jury fees are court costs. (Section 6138 of the Revised Statutes as amended Laws 1899, page 234, H. B. No. 84, approved February 9, 1899.) The court had a right to make such a demand. (Conneau v. Geis, 73 Cal. 176, 2 Am. St. Rep. 785, 14 P. 580; Bank of Lassen Co. v. Sherer, 108 Cal. 513, 41 P. 415; Rollins v. Notting, 53 Minn. 232, 54 N.W. 1118; Pacific v. Hopkinson, 69 Mich. 10, 36 N.W. 797; Allen v. Plummer, 71 Tex. 546, 9 S.W. 672.)

SULLIVAN, J. Huston, C. J., and Quarles, J., concur.

OPINION

SULLIVAN, J.

This action was brought in the probate court of Elmore county to recover forty-eight dollars and twenty-five cents. The defendants answered, putting in issue the material allegations of the complaint, and, by way of cross-complaint, set up an alleged cause of action against the plaintiff. When the cause came on for trial, the defendants demanded a jury. The court thereupon refused to issue a venire for a jury unless the defendants would deposit with the court sufficient money to pay the fees of the jurors. The defendants refused to make such deposit, and the court proceeded to try the case without a jury, and thereafter entered judgment in favor of the plaintiff. The defendants thereupon took an appeal from said judgment, on questions of law alone, to the district court, by which court said judgment was affirmed. This appeal is from the judgment.

The only question for decision is, Did the probate court have power, under the law, to require the defendants to deposit sufficient money to pay the jurors' fees, as a condition precedent to the right to have a jury trial? We answer this question in the negative. We have no statute requiring the deposit of jurors' fees with the court, as a condition precedent to the right of a party to have a jury in cases that come under justice court practice. Nor have we any statute authorizing courts to make a rule to that effect. Many of the states have statutes authorizing the courts to require a deposit of jurors' fees as a condition precedent to the right to have a jury trial; and a number of the cases cited by counsel for respondent in support of his position are under such statutes, and for that reason are not in point. There appears to be some conflict in the decisions from California on the question under consideration. (See Conneau v. Geis, 73 Cal. 176, 2 Am. St. Rep. 785, 14 P. 580; Bank of Lassen Co. v. Sherer, 108 Cal. 513, 41 P. 415; Adams v. Crawford, 116 Cal. 495, 48 P. 488; Biggs v. Lloyd, 70 Cal. 447, 11 P. 831.) Section 6138 of the Revised Statutes, and the act amendatory thereof (Sess. Laws 1899, p. 180), provide that jurors in justices and probate courts are entitled to receive two dollars per day for each day actually engaged in the...