St. Paul & S. C. R. Co. v. Gardner

• Decision Date: 01 January 1874
• Citation: St. Paul & S. C. R. Co. v. Gardner, 19 Minn. 99 (Minn. 1874)
• Parties: ST. PAUL & SIOUX CITY R. CO. v. J. W. GARDNER and others.
• Court: Minnesota Supreme Court

19 Minn. 99

ST. PAUL & SIOUX CITY R. CO.

v. J. W. GARDNER and others.

Supreme Court of Minnesota.

Appeal by defendants from an order of the district court, Ramsey county, denying a new trial.

H. J. Horn with I. V. D. Heard, and Lochren & McNair, for appellants.

Brisbin & Palmer, for respondent.

RIPLEY, C. J.

This case was by order of the district court referred to George L. Otis, Esq., to hear, try, and determine the issues therein, and report a judgment. The referee found for the plaintiff, and directed judgment to be entered accordingly. This appeal is taken by the defendants from the order of the district court denying their motion to set aside and vacate the report and grant a new trial.

The motion was based (among others) upon the following grounds: "Fourth, because the said cause was not tried by a jury; fifth, because the said court ordered a reference against the objections and exceptions of the defendants."

The record in the district court, as amended by order of the court, states "that the cause came on to be heard in open court, at a general term thereof, at the first day of said term, upon a motion of the plaintiff, * * * upon the pleadings, to refer the same to a referee to hear and determine all the issues therein, and report a judgment to said court, and the defendants objected to said motion, and demanded a jury trial. It was ordered that said cause be referred in accordance with said motion of plaintiff, but to be left open for a few days, so far as the selection of such a referee was concerned, to enable the parties to agree upon the referee to be appointed under such order, to which said order, decision, and ruling, and every part thereof, the defendants then and there excepted, and their exception was then and there duly noted by the court; and afterwards, to-wit, on the ninth day of May, 1871, the said parties reported to said court that they had agreed upon G. L. Otis, Esq., as the referee to be appointed in accordance with such order, and thereupon the said G. L. Otis was appointed referee under said order of reference aforesaid, subject to said objection and exception of said defendants."

The exception above mentioned was per se unavailing to save to the defendants the benefit of their said objection to said order.

An exception is an objection taken at the trial to a decision upon a matter of law. Gen. St. c. 66, § 233. This exception was not taken at the trial, but to an order to refer the cause for trial.

Exceptions must, in all cases, to be effectual, be taken at the trial, and there is no such practice authorized by statute, or by course of common law, as excepting to the decision of a court upon a question arising otherwise than upon the trial. Onondaga Co. Mut. Ins. Co. v. Minard, 2 N. Y. 98; Law v. Merrill, 6 Wend. 268; People v. Dalton, 15 Wend. 581.

It is therefore unnecessary to consider the plaintiff's objections to the action of the judge of the district court in allowing an amendment of the record, so as to show that an exception was taken and noted against the proof offered by plaintiff upon the hearing of said motion, showing, as it alleges, that defendants, in point of fact, took no such exception.

The plaintiff, of course, does not dispute the power of the district court so to amend its record as to show the truth of the matter, nor does it dispute that the order to refer the cause was made against defendants' objection and demand for a jury trial.

It insists, however, that the record of the district court aforesaid is not properly before us upon this appeal.

In the first place, it is said that the motion to set aside the verdict and for a new trial does not reach the order to refer; that the defendants should have moved the district court to vacate the order. But the statute provides that a report may be vacated and a new trial granted "for any of the following causes materially affecting the substantial rights of such party: First. Irregularity in the proceedings of the court * * * or any order of the court * * * by which the moving party was prevented from having a fair trial." Gen. St. c. 66, § 235.

If the defendants were entitled to a jury, they have not had a fair trial, however fairly the case may, in point of fact, have been tried by the referee, and however correct his rulings and decision.

By "fair trial" the statute means that which is such in contemplation of law, viz., that which the law secures to the party.

It is unnecessary to add that an order denying a jury trial in such case is one which materially affects the substantial rights of the party.

An appeal from an order denying a motion for a new trial would, therefore, bring up the record relating to such denial.

But the plaintiff further insists that the order of reference was not an appealable order. If this were one of a class of cases in which a reference was authorized by law this would be true. It would then be discretionary with the judge whether to refer it or not, and no appeal would lie except in case of an abuse of discretion. Brisbin v. Am. Ex. Co. 15 Minn. 43, (Gil. 25;) Kennedy v. Shelton, 1 Hilton, 546. But an order which directs a reference in a case in which a reference is not authorized by law is appealable. Crane v. Bradford, 4 Abb. Pr. 193; Berkey v. Judd, 14 Minn. 394, (Gil. 300.)

Upon this return, then, the question, whether or not this reference was authorized by law, is properly before us.

The action is brought to recover the value of 1,000 bushels of wheat alleged to have been delivered by plaintiff to defendants out of the Mankato elevator, in the course of the plaintiff's business, in excess of the quantity deposited by defendants therein, and to have been by them converted to their own use. The complaint also alleged a demand and refusal.

The General Statutes, (chapter 66, § 228,) provides, that when the parties to a civil action, or a proceeding of a civil nature, do not consent, the court may, upon the application of either, or of its own motion, direct a reference when the trial of an issue of fact requires the examination of a long account on either side.

It is unnecessary to go into the question, whether or not the plaintiff is right in its contention, that the pleadings showed this case to be a proper one for a compulsory reference under the statute, as requiring the examination of a long account on either side, or whether upon the whole case as disclosed at the trial, it appears that the production and inspection of long accounts were necessarily involved, although we agree with the plaintiff that if the case in fact is a proper one to refer, this court will not consider whether or not the district court was mistaken in supposing that this appeared upon the pleadings.

This is a case at law, strictly and properly so called, in contradistinction to a case in equity or a special proceeding.

It is undeniable that the statute above cited, in terms, authorizes a compulsory reference in actions at law. Gen St. c. 66, § 1.

It is equally clear, in our judgment, that in so far as it does, it conflicts with the constitutional provision, (article 1, § 4,) that "the right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy."

This particular provision in question for compulsory references is first found in Rev. St. 1851, c. 71, §§ 50, 51, 52. In Carson v. Smith, 5 Minn. 78, (Gil. 58,) the point was made that the provision for the appointment of referees was unconstitutional, as being an infringement of the constitution (article 6, § 1,) which vests the judicial power of the state in the courts therein named. But the court said that the statute concerning referees "was passed in the year 1851, and has been the law of the territory and the state ever since, without any question of its validity having been made. Probably there is no act upon the statute book under which more interests have been affected, more rights passed, and property involved, than the statute authorizing the appointment of referees. Under the pressure of great interests, this court would hesitate long before it would disturb a statute, unless fully convinced that it was in violation of some substantial provision of the fundamental law; and the very fact that it has been so long acquiesced in by the whole bar of the state, and acted upon without question, would lead us to doubt our own convictions, should an investigation strengthen the point made against its validity;" and the court held that said statute did not divert the judicial power from said court, the referee being simply the officer of the court.

We have no desire to disturb that decision, but the question in the present case is very different. The weight of the considerations adverted to by the court in that case is, however, not lessened by the fact that, though 12 years have elapsed since Carson v. Smith was decided, the validity of the particular provision of the statute now before us has never before been drawn in question. But upon the most anxious and careful consideration we entertain no doubt of the correctness of our opinion as already stated.

Perhaps the long acquiescence in this provision may be explained by the fact that it was taken from New York. 2 N. Y. Rev. St. (3d Ed.) p. 481, § 43; Code, § 271.

In 1840 the point was made in New York that the right of courts of law to refer was unconstitutional, as being contrary to the seventh article of the amendments to the United States constitution, viz., that in suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved. To this it was answered, however, that the provision aforesaid relates to such courts only as sit under the authority of the United States.

And as to the provision in the then constitution of New York, art. 7, § 2, (1 N. Y. Rev. St. 3d Ed. p. 44,) which declared that the trial by jury in all cases in which it has been...