Reliance Auto Repair Co. v. Nugent

• Decision Date: 17 November 1914
• Citation: 159 Wis. 488,149 N.W. 377
• Parties: RELIANCE AUTO REPAIR CO. v. NUGENT.
• Court: Wisconsin Supreme Court

159 Wis. 488

149 N.W. 377

RELIANCE AUTO REPAIR CO.

v.NUGENT.

Supreme Court of Wisconsin.

Nov. 17, 1914.

Appeal from Circuit Court, Milwaukee County; L. W. Halsey, Judge.

Suit by the Reliance Auto Repair Company against Michael Nugent, begun in the civil court of Milwaukee county, and appealed by defendant to the circuit court. From a judgment of the circuit court, affirming a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff sued to recover $93.35 for repairs upon and storage of defendant's automobile, and recovered judgment therefor after a trial by the court; a jury trial having been waived. The judgment was affirmed by the circuit court upon the record, notwithstanding the defendant's demand for a trial by jury.W. J. Kershaw, of Milwaukee, for appellant.

Michael Levin, of Milwaukee, for respondent.

WINSLOW, C. J.

The defendant's chief contention is that under section 5 of article 1 of the state Constitution, which provides that “the right of trial by jury shall remain inviolate,” he was entitled to a jury trial in the circuit court, and that so much of the Civil Court Act (chapter 549, Laws 1909) as purports to authorize the circuit court on appeal to affirm or modify judgments of the first-named court upon the record without a jury trial is unconstitutional.

The Civil Court Act provides (section 19, chapter 549, supra) that either party to a civil action in that court may demand and have a trial by a jury of 12 men, to be drawn from the jury list of the county, upon paying to the clerk of the court $12, which sum is to be recovered as costs if he prevails. As appears from the statement of facts, the appellant waived his right to this jury trial. The following propositions are decided in this case:

[1] 1. The jury trial guaranteed by the Constitution is the jury trial which existed in the territory at the time of the adoption of the Constitution; i. e., a trial in a court of competent jurisdiction before a jury of 12 men impartially selected. Norval v. Rice, 2 Wis. 23;Gaston v. Babcock, 6 Wis. 503;Klein v. Valerius, 87 Wis. 54, 57 N. W. 1112, 22 L. R. A. 609.

[2] 2. The jury trial provided for in the civil court of Milwaukee county satisfies this guaranty; and, as the guaranty only contemplates one jury trial, the provisions of law authorizing the affirmance of judgments of the civil court without new trial do not transgress the Constitution in this regard.

[3] 3. The requirement that the party demanding a jury shall pay into court a jury fee of $12, to be recovered by him in the cost bill, if successful in the action, is not an unreasonable regulation of the right; nor is it an invasion of section 9, art. 1, of the Constitution, which provides that “every person * * * ought to obtain justice freely, and without being obliged to purchase it.” Christianson v. Pioneer Furniture Co., 101 Wis. 343, 77 N. W. 174, 917;Harrigan v. Gilchrist, 121 Wis. 127, at page 215, 99 N. W. 909;Conneau v. Geis, 73 Cal. 176, 14 Pac. 580, 2 Am. St. Rep. 785;Adams v. Corriston, 7 Minn. 456 (Gil. 365); Adae v. Zangs, 41 Iowa, 536;Venine v. Archibald, 3 Colo. 163;State v. Neterer, 33 Wash. 535, 74 Pac. 668; Randall v. Kehlor, 60 Me. 37, 11 Am. Rep. 169. Furthermore, it appears that under the territorial statutes of Wisconsin any party recovering a verdict was required to pay into court for the benefit of the county $3 before the declaration of the...