Smith v. Kunert

• Decision Date: 13 November 1907
• Parties: JAMES SMITH v. PAUL KUNERT
• Court: North Dakota Supreme Court

115 N.W. 76

17 N.D. 120

JAMES SMITH v. PAUL KUNERT

Supreme Court of North Dakota

November 13, 1907

Appeal from District Court, Foster county; Burke, J.

Action by James Smith against Paul Kunert. Judgment for plaintiff and defendant appeals.

Affirmed.

J. A Dwyer and Chas. E. Wolfe, for appellant.

The right of trial by jury means the right as at common law unless modified by custom, usage or statute. Barry v. Truax, 13 N.D. 131, 99 N.W. 769.

Law authorizing reference, without consent of party, whether a long account is to be taken or not, is unconstitutional. Grim v. Norris, 19 Cal. 140; Benham v. Rowe, 2 Cal. 261; McMartin v. Bingham, 27 Iowa 234; Blair Town Lot Co. v. Walker, 50 Ia. 376; Burt v. Harriah, 22 N.W. 910; Whallon v. Bancroft, 4 Minn. 95; St. Paul Railway Co. v. Gardner, 19 Minn. 132; Mills v. Miller, 3 Neb. 87; LaMaster v. Scofield, 5 Neb. 148; Kinkaid v. Hiatt, 39 N.W. 600; Johnson v. Wallace, 7 Ohio 62; Averill Coal & Oil Co. v. Verner, 22 Ohio St. 372.

Whether reference is authorized is determined by character of plaintiff's claim, not by the issue, or defendant's answer. Gopsill v. Harvey 34 N.J.L. 435; Ludlow v. American National Bank, 59 Barber (N.Y.) 509; Childs v. Mayer, 52 Hun. 537; Betcher v. Grant County, 68 N.W. 163; Kelly v. Oksall, 97 N.W. 11; Ewart v. Kass, 95 N.W. 915.

Necessity of examination of a long account must appear from the pleadings. Betcher v. Grant County, 68 N.W. 163; Ewart v. Cass, supra; Kelly v. Oksall, supra.

Failure to object to reference does not waive right to jury trial. Hanson v. Carlblom, 13 N.D. 361, 100 N.W. 1084; Twp. of Noble v. Aasen, 10 N.D. 264, 86 N.W. 742.

Parks & Olsberg, for respondent.

The case, not involving a long account on either side, was not one for reference. Townsend v. Hendricks, 40 How. Pr. 143; Welsh v. Darrah, 52 N.W. 590; Untermeier v. Beinhauer, 11 N.E. 847; Steck v. Colorado Fuel & Iron Co., 37 N.E. 1; Cassidy v. McFarland, 139 N.Y. 201; Randall v. Kingsland, 53 How. Pr. 512; Martin v. Gould, 13 Civ. Proc. R. 45; Hale v. Swinburne, 17 Abb. N. C. 381; Nachtstein v. Turner, 36 N.W. 637.

Nor where accounts are collaterally and incidentally involved. Kain v. Delano, 2 Abb. Prc. 29; Ronalds v. Mechanics Bank, 37 N.Y.S. 208; Camp v. Ingersoll, 86 N.Y. 433; Keller v. Paine, 51 Hun. 316; Doyle v. Metropolitan El. R. R., 32 N.E. 1008.

The account was sufficiently long to warrant a reference. Sutton v. Wegner, 43 N.W. 167; Nachtstein v. Turner, supra, La Coursier v. Russell, 52 N.W. 176; Chicago & N.W. R. Co. v. Faist, 58 N.W. 744; Priest v. Varney, 25 N.W. 551; Briggs v. Hils, 48 N.W. 800; Monitor Iron Works Co v. Ketchum, 2 N.W. 80; Rolling Stock Co. v. Johnston, 30 N.W. 211.

Literal copy of testimony not reduced to narrative form in referee's report, and in statement of case, precludes consideration by the court. S.Ct. Rule No. VII, Rev. Codes 1905, Sec. 7058. Thuet v. Strong, 7 N.D. 565, 75 N.W. 922.

Specifications of error failing to indicate wherein evidence is insufficient, are not sufficient. Sec. 7058, Rev. Codes 1905; Supreme Court Rule No. VII; Hostetter v. Brooks Elevator Co., 4 N.D. 357, 61 N.W. 49.

OPINION

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, 15 N.D. 533, 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 state 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 improvidently 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. Truax, 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 this 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...