Scott v. Young

• Decision Date: 16 May 1905
• Citation: 113 Mo. App. 46,87 S.W. 544
• Parties: SCOTT v. YOUNG.
• Court: Missouri Court of Appeals

87 S.W. 544

113 Mo. App. 46

SCOTT v. YOUNG.

St. Louis Court of Appeals. Missouri.

May 16, 1905.

JUSTICE OF THE PEACE—TRIAL BY JURY—CONDITIONS —DEPOSIT OF FEES.

Bill of Rights, § 28, Const. art. 2, provides that the right of trial by jury as heretofore enjoyed shall remain inviolate, but that a jury in courts not of record may consist of less than 12 men. Rev. St. 1899, § 691, declares that an issue of fact in an action to recover money only must be tried by a jury, unless a jury is waived. Sections 3775, 3778, 3779, 3787, provide for the fees and mileage of jurors, and section 3782 declares that the treasurer of the

county, on presentation of scrip issued to jurors for fees, shall pay the same out of any money in the treasury appropriated for county expenses. Section 3788 declares that $12 shall be taxed as jury fees as a part of the costs against the unsuccessful party, and, when collected, shall be paid into the county treasury. Section 3791 requires a deposit in the case of special juries, and sections 1542 and 1543 require the plaintiff in certain cases to file a bond or make a sufficient deposit to cover costs. Held, that a defendant in a justice court in a suit to recover money only was entitled, as a matter of right, to a jury trial, without first making a deposit to cover the expense of the jury.

Appeal from Circuit Court, Stoddard County; Jas. L. Fort, Judge.

Action by C. L. Scott against J. R. Young. From a judgment of the circuit court in favor of plaintiff, reversing a justice's judgment on a counterclaim in favor of defendant, he appeals. Reversed.

J. R. Young, for appellant. Geo. Houck, for respondent.

NORTONI, J.

This case originated before a justice of the peace in Stoddard county. The cause of action filed was a past-due promissory note, which had been theretofore executed by appellant in favor of respondent. The answer pleaded no consideration for the note, and contained a counterclaim asking damages against the respondent. On a trial before the justice the appellant here recovered judgment for $250 on the counterclaim. Respondent appealed to the circuit court. We copy from the bill of exceptions as to what took place in that court as follows: "Be it remembered that this cause coming on to be heard at the September term, 1902, of the circuit court of Stoddard county, the following proceedings were had: The court refused a jury to the defendant unless defendant put up amount in cash in the hands of the clerk sufficient to pay the expenses of the jury, to which ruling of the court the defendant excepted. The plaintiff, to sustain the issues on his part, introduced in evidence the following note." A jury being denied, the appellant's case was tried by the court, and the finding was in favor of the respondent for the amount of the note sued on, together with interest. A motion for new trial was filed in due time, and overruled by the court. The case is brought here by appeal. The only error assigned is the refusal of the circuit court to grant appellant a trial by jury.

The bill of exceptions shows that appellant demanded that his cause be tried by a jury, and that this demand the court refused unless he deposited sufficient money to cover the expense of a jury, which he declined to do, and saved his exceptions. This question first arose under the old Constitution (1820) of Missouri, and was decided in Bank of Missouri v. Anderson, 1 Mo. 244. The court said: "By the English law a trial by motion dispenses with writ and declaration, and the words `in a summary way' dispense with all sort of formal pleading and a jury also; and in this case it is contended the course must be the same. This doctrine would be good in England and in this state if it were not for a provision in our Constitution which says the trial by jury shall remain inviolate; the meaning of which is that with respect to facts the trial shall be by twelve men, and they shall all and each of them be good and lawful men. They must have a good fame, possess integrity and intelligence. They must not be aliens, vagrants, outlaws, nor under conviction of crimes. They must all be under oath when they try a fact or cause. They must all agree in their verdict. And the right to have disputed facts tried by such a jury, and in such a manner is to remain inviolate. It is the right of all parties who are capable of being sued, and if this right is or can be limited or restrained by the Legislature because the proceeding is summary, then every case may be required to proceed in the same way, and so the jury trial be entirely undermined and lost. And, furthermore, the act of the Legislature of May, 1807, says that in all cases either party in any suit, if he demands it before the trial, shall have a trial by jury (see Geyer's Digest, 256). Here the motion was undoubtedly a suit, and the jury trial was demanded and refused. The bank was a party, and it had a right to have the facts whether a demand of specie payment was made and whether it was refused tried by a jury." The provision in the Constitution of 1820 was, "The right of trial by jury shall remain inviolate." Section 8 of the Declaration of Rights, art. 13, Const. Mo. 1820; Rev. St. 1855, p. 83. The same clause was under consideration by the Supreme Court in Vaughn v. Scade, 30 Mo. 600. That case was an action for negligence in the St. Louis law commissioners' court. A trial was had under a statute authorizing the court to impanel a jury of six men. A jury of twelve men was demanded, which demand the court refused. Our Supreme Court held that the words "trial by jury," as employed in the Constitution, were adopted in their commonlaw sense and meaning; that a jury at common law consists of twelve good and lawful men; that the statute which authorized a jury of six men was violative of that provision of the Constitution; and that the court erred in denying the request for a jury of twelve, saying that a jury should consist of twelve men, and, among other things, they should be unanimous in their verdict. The court further said: "We are of the opinion that, as the court of law commissioners is a court of record, having common-law jurisdiction and proceeding according to the course of the common law, in any trial in that court a party is entitled to a jury of twelve men when he demands it." In Foster v. Kirby, 31 Mo. 496, the cause was reversed "because of the refusal of the court below to grant defendant's demand that the jury should consist of twelve persons." The case of Henning v. Ry., 35 Mo. 408, was reversed by the Supreme Court for the same reasons. See, also, Briggs v. Ry., 111 Mo. 168, 20 S. W. 32. Section 28 of the Bill of Rights, art. 2, Const. Mo. 1875; Rev. St. 1899, p. 67, provides in part: "The right of trial by jury as heretofore enjoyed,...