Smith v. Kunert

• Decision Date: 03 March 1908
• Citation: 17 N.D. 120,115 N.W. 76
• Parties: SMITH v. KUNERT.
• Court: North Dakota Supreme Court

17 N.D. 120

115 N.W. 76

SMITH

v.KUNERT.

Supreme Court of North Dakota.

Nov. 13, 1907.

On Rehearing, March 3, 1908.

Syllabus by the Court.

The statement of the case contains a literal transcript of the testimony taken and reported by a referee to the district court, without any attempt to condense or eliminate immaterial matter. Held, following the rule announced in prior decisions of this court, that such practice is a plain violation of section 7058, Rev. Codes 1905, as well as rule 7 of this court, and does not constitute a statement of the case.

Certain specifications of error relating to the findings of the referee are held insufficient under the statute and rule aforesaid, for the reason that no attempt is made to specify wherein the evidence was insufficient to support the findings complained of.

Appellant's assignments of error, based upon rulings and findings of the referee, are not considered, for the reason that the statute and rule above mentioned have not been complied with.

Under the provisions of sections 7046 and 7047, Rev. Codes 1905, a compulsory reference cannot be ordered without the written consent of the parties, unless the case comes within the provision of the latter section. Mere silence or failure to object or except to the order will not constitute a waiver of a party's constitutional right to a trial by jury.

Subdivision 1, § 7047, Rev. Codes 1905, is not in conflict with section 7 of our state Constitution, which provides that “the right to trial by jury shall be secured to all and remain inviolate.” The right of trial by jury as thus guaranteed refers to such right as it existed by law at and prior to the adoption of the Constitution.

Under the issues as framed by the pleadings in this case, it is held that the trial thereof involved the examination of a long account, within the meaning of section 7047, Rev. Codes 1905, and hence that the order of reference was properly made.

Appeal from District Court, Foster County; E. T. Burke, Judge.

Action by James Smith against Paul Kunert. Judgment for plaintiff, and defendant appeals. Affirmed.J. A. Dwyer and Chas. E. Wolfe, for appellant. Parks & Olsberg, for respondent.

FISK, J.

This appeal is from a judgment of the district court of Foster county, and comes to this court for review of alleged errors of law. A so-called statement of case was settled, embracing 34 specifications of error, and appellant's counsel have assigned 30 of such alleged errors in their printed brief upon which they rely for a reversal of the judgment. The practice pursued by appellant's counsel in the preparation of the statement of the case discloses a most flagrant violation of the statute and rules of this court governing the same. The case was tried before a referee, and the statement of case contains a literal transcript of the testimony taken and reported to the district court, without any attempt to condense or eliminate immaterial matter. That such procedure is not permissible, and that such a document does not constitute a statement of the case, in an action such as this, clearly appears from a reading of section 7058, Rev. Codes 1905, and rule 7 of this court. See opinions of Wallin, J., in Thuet v. Strong, 7 N. D. 565, 75 N. W. 922, and McTavish v. G. N. Ry. Co., 8 N. D. 94, 76 N. W. 985.

The so-called specifications of error, numbered 24 to 29 inclusive, are also clearly insufficient under the statute and rule above mentioned, for the reason that no attempt is made to point out wherein the evidence was insufficient to support the findings complained of. Jackson v. Ellerson (N. D.) 108 N. W. 241. We deem it unnecessary to add anything to what was said in the previous opinions of this court in said cases. The requirements, both of the statute and of the rule aforesaid, are plain, and must be observed. For the foregoing reasons we decline to notice any of appellant's assignments of error based upon rulings and findings made by the referee, and will dispose of those relating merely to the validity of the order of the district court in referring the issues to a referee.

Appellant's counsel contend, first, that the issues were such that appellant had a constitutional right to a jury trial in the absence of an express waiver thereof; and, second, that the case is not one involving the examination of a long account upon either side, within the meaning of our statute, and hence that the order of reference was in any event inprovidently issued. The provisions of our Code relating to the power of courts to order references are contained in sections 7046 and 7047, Rev. Codes 1905, and, so far as material to the questions here involved, are as follows:

“Sec. 7046. All or any of the issues in an action whether of fact or law, or both, may be referred by the court or judge thereof upon the written consent of the parties.

Sec. 7047. When the parties do not consent to the reference, the court may, upon the application of either party, or of its own motion, direct a reference in the following cases: (1) When the trial of an issue of fact will require the examination of a long account on either side, in which case the referee may be directed to hear and decide the whole issue or to report upon any specific question of fact therein. * * *”

It is apparent, from the language of these sections above quoted, that without the written consent of the parties, and none appears in this case, a court is powerless to order a reference, except pursuant to the provisions of section 7047. Mere silence or failure to object or except to the order will not constitute a waiver of a party's constitutional right to a trial by jury. Township of Noble v. Aasen, 10 N. D. 264, 86 N. W. 742;Hanson v. Carlblom, 13 N. D. 361, 100 N. W. 1084. By what we have above stated we do not wish to be understood as holding that a party may not by his conduct become estopped to challenge the validity of such an order; but we hold that, under the facts appearing in the record in this case, the order must be sustained, if at all, upon the ground that the trial required the examination of a long account, and this brings us to a consideration of appellant's first contention, which is, in effect, that subdivision 1, of section 7047, in so far as it authorizes compulsory references in actions such as this, is in conflict with section 7 of our state Constitution, which provides that “the right to trial by jury shall be secured to all and remain inviolate.”

We think there is no merit in this contention. The meaning of this important provision contained in our organic law was authoritatively, and no doubt correctly, settled by this court in Barry v. Traux, 13 N. D. 131, 99 N. W. 769, 65 L. R. A. 762, 112 Am. St. Rep. 662. In an exhaustive opinion upon the subject, by Young, C. J., reviewing and citing numerous authorities, the conclusion was reached that the framers of the Constitution intended by the adoption of said provision to preserve and perpetuate the right of trial by jury as it existed by law at and prior to the adoption of the Constitution. We quote in part as follows: “The Constitution refers to ‘the right of trial by jury’ as a right well known and commonly understood at the time of its adoption, and it is the right so understood which is secured by it. * * * It is entirely clear, therefore, that the right of trial by jury, which is secured by the Constitution, is the right of trial by jury with which the people who adopted it were familiar, and that was the right which had obtained a fixed meaning in the criminal jurisprudence of the territory, as defined by the statutes which existed prior to and at the time of the adoption of the Constitution.” At the time the Constitution was adopted, and for some time prior thereto, a territorial statute (chapter 112, p. 151, Laws 1889) was in force authorizing compulsory references in actions the trial of which involved examination of a long account upon either side, and we think it plain that the practice as thus established was not intended to be interfered with by the adoption of the constitutional provision aforesaid. This territorial statute has been continued in force ever since statehood, and is now embraced in section 7047, Rev. Codes 1905, and during all this time no attack upon its constitutionality, other than the present one, has been made in the courts of the state so far as we are aware, and the same has therefore become firmly settled as a rule of practice in our courts. In the light of these facts, we would feel very reluctant to declare the same unconstitutional in any event; but, as before stated, we are convinced that section 7 of our Constitution should be construed in the light of the existing practice as established by law at the time of its adoption, and, as thus construed, the statute in question is constitutional. Appellant's counsel have called to our attention numerous authorities from other states holding similar statutes void under constitutional provisions very similar to section 7 of our Constitution; but in most, if not all, of these cases it will be found upon examination that the statute in question was not in force at the time of the adoption of the Constitution, but was enacted subsequently, and hence these decisions are not in point. As sustaining our views, see, also, 17 Enc. Pl. & Pr. 94, and cases cited; Tinsley v. Kemery, 170 Mo. 310, 70 S. W. 691; Salem Traction Co. v. Anson, 41 Or. 562, 67 Pac. 1015, 69 Pac. 675, and Board of Supervisors of Dane County v. Dunning, 20 Wis. 210, and cases cited.

But counsel for appellant contend that, even though the statute aforesaid be held constitutional, still the order of reference...