State ex rel. Carlin v. Dist. Court of Fifth Judicial Dist. In

• Decision Date: 18 December 1945
• Docket Number: No. 8625.,8625.
• Citation: State ex rel. Carlin v. Dist. Court of Fifth Judicial Dist. In, 118 Mont. 127 (Mont. 1945)
• Court: Montana Supreme Court
• Parties: STATE ex rel. CARLIN v. DISTRICT COURT OF FIFTH JUDICIAL DIST. IN AND FOR JEFFERSON COUNTY et al.

118 Mont. 127

STATE ex rel. CARLIN

v.DISTRICT COURT OF FIFTH JUDICIAL DIST. IN AND FOR JEFFERSON COUNTY et al.

No. 8625.

Supreme Court of Montana.

Nov. 24, 1945.

As Corrected on Denial of Rehearing Dec. 18, 1945.

Mandamus proceeding by the State, on the relation of William Carlin, against the District Court of the Fifth Judicial District in and for the County of Jefferson, and Hon. Lyman H. Bennett, Judge thereof, seeking an order that a trial jury be drawn and required to attend before the court and that a particular named cause be set for trial before such jury.

Writ granted in accordance with opinion.A. G. Shone and H. L. Maury, both of Butte, for appellant.

Taylor B. Weir, of Helena, for respondent.

CHEADLE, Justice.

Upon the application of William Carlin this court on September 24, 1945, issued its alternative writ of mandate, requiring that respondents, prior to October 10, 1945, make an order that a trial jury be drawn and required to attend before the court, and the cause of the relator v. Northland Greyhound Lines, Inc. and Walter H. Wood, be set for trial before said jury, or to show cause before this court on October 12, 1945, why this had not been done.

The affidavit of relator in support of the application shows that on September 14, 1943, plaintiff filed with the clerk of respondent court his complaint in the action above mentioned; that the answer of the defendants was filed on November 12, 1943, and plaintiff's reply on November 17, 1943, and that said cause has been at issue and ready for trial since the latter date; that repeatedly during the year 1944 the plaintiff requested the court to set the cause for trial before a jury, but that the court declined, refused and failed to do so.

Relator further alleges that on March 7, 1945, he presented in open court, and made written demand of respondents that within a reasonable time from said date an order be made that a trial jury be drawn and required to attend before the court, and that said action be set for trial before such jury; that upon presentation of such demand, respondent Hon. Lyman H. Bennett announced that the matter was taken under advisement, and that as of the date of the application herein no decision thereon has been announced by respondents; that the time limit of the demand (at or before the next succeeding term of respondent court) has expired, and the order demanded has not been made.

Relator concludes that respondents have not afforded him a speedy, or any, remedy for the injuries to his person and property, as alleged in the complaint, and have not, to plaintiff, administered right and justice without sale, denial, or delay; that unless the writ applied for be granted relator will have no plain, speedy or adequate remedy for the delay and the denial of justice to him by respondents.

Attached to the application are copies of the complaint, answer, and reply in the action mentioned.

Respondent's answer herein was filed on October 23, 1945, to which date the hearing was continued. Therein respondents deny any intention or desire to postpone or delay the orderly proceeding of the action to trial or other disposition under the law and the rules of respondent court; that respondent, Bennett, in an effort to exercise his judicial discretion soundly and in conformity with law, gave consideration to the following conditions:

(a) That it is not proper at any time to subject funds of the public or of litigants to expenditures for the holding of juries and witnesses in attendance while he or the court is engaged in the determination of correct rules of law to be applied to litigation; that in order to avoid such unnecessary expenses he has, ever since his qualification as Judge, including the year 1944, repeatedly called to the attention of the lawyers practicing in his district, including counsel for relator, the provisions of Chapter 61 of the Session Laws of 1939, as the same relate to and provide for pretrial conferences, and has endeavored to secure from said attorneys voluntary co-operation in and about the use of the pre-trial practice provided for in said Act; that early in 1945 he specifically suggested to counsel for relator that a pre-trial conference in his case be had, or that same be set for trial before the court without a jury, or before a special jury or fact-finding body to be agreed upon by the parties, but that relator declined to utilize any of the methods suggested. That for many months said respondent has been contemplating the adoption of a rule of court for the utilization of pre-trial practice, and that on September19, 1945, subsequent to filing of the application herein, the following rule of court was adopted:

‘Rule XXX. From and after the date upon which this rule shall become effective, no civil action within which any party thereto shall be otherwise entitled to demand a trial upon any issue of fact before or by a jury shall be set for trial before or by a jury until a conference is had pursuant to the provisions of section 9327 of the Revised Codes of Montana, 1935, as amended by Chapter 61 of the Session Laws of the Twenty-sixth Legislative Assembly of the State of Montana (1939), and to the end that all such actions may be expeditiously disposed of, it is provided that whenever after issues are joined therein any party to any action falling within the purview of this rule shall desire a disposition of such action, he may file with the clerk of the court wherein such action may be pending a notice setting forth the title and number of the action with a request that said cause be set down for pre-trial conference upon all phases of said action which can be considered pursuant to the Pre-trial Practice Act Amendment hereinbefore referred to. At the next session of the court after the filing of such request, the clerk of the court wherein the request is filed shall present the same to the court and the case shall be immediately set for such pre-trial conference at a date which, in the absence of agreement between the parties with the consent of the court for an earlier date, shall not be less than two weeks from the date upon which the setting shall be made.’

(b) Respondents further state that on the date said rule was adopted, relator's case, with several other pending civil actions, was set for pre-trial conference, at which relator's counsel appeared; that after a short conference the matter was, without objection, continued to October 17, 1945, upon which date relator's counsel appeared in court; the matter not having been disposed of, due to conferences which the court deemed to have precedence over relator's, the court announced that it would be in recess until 1:30 p.m. of said date, at which time conferences undisposed of, including relator's, would be taken up; whereupon counsel for relator presented a written statement of relator's contemplated evidence, and announced that he would not participate further in a conference, and that relator's senior counsel absented himself from the court; that respondent, Bennett, deems the pre-trial conference uncompleted and undisposed of, and states that he deems relator's case will remain in condition ‘not for trial’ until such conference be concluded and a final order reciting the action taken at the conference shall be made. (The record does not disclose whether counsel for the defendants in the action were present in court on said date.)

(c) Respondents further assert that because of war conditions and the consequent drafting of manpower, and of the great economic uncertainty obtaining throughout the country, and the shortage of labor to perform agricultural and other work, it has been and is impossible to secure such a trial jury panel as is contemplated by the existing system of jurisprudence, without working a great hardship and loss upon the individual jurors; that war conditions have resulted in the absence of witnesses, and personnel from law offices. Further, that the cost of calling a jury panel for the trial of a single case has been taken into consideration by respondents in setting or not setting cases for jury trial during continuance of the war.

(d) That shortage of travel, hotel and eating accommodations at the county seat would render it extremely inconvenient for members of the jury panel, and which conditions would impede the holding of a jury term and render impartial administration of justice extremely difficult if not impossible.

(e) That respondent Bennett also deems that in the exercise of a sound discretion he may, when desirable, dispose of issues of fact in civil actions by referring controverted issues of fact in the absence of agreement for trial by the court without a jury; that until determination of the practice thereon in any given case the case is not necessarily for trial, and it is improper to issue jury panels pending such determination, and that pre-trial conferences are proper for use in and about such determination as well as for other purposes.

Inconvenience or loss to prospective jurors, or the lack of adequate travel, hotel or eating facilities for them, as set forth in sub-paragraphs (c) and (d) above, constitute no valid excuse for depriving a litigant of his constitutional right to a reasonablyprompt disposition of his litigation. The obligation of jury duty is not often fulfilled without some sacrifice of time or money or convenience by individual jurors.

As to the assertions of subparagraph (e), we think the effect of the pretrial practice act is not such as to deprive a litigant, in a case such as this, of the right to have controverted fact questions disposed of by a jury, as prescribed by the Constitution.

Relator contends that he has been denied his constitutional right of a speedy remedy for injuries to his person and property, and that unless this court grant the writ prayed for, he will have no plain, speedy or adequate remedy for the delay and the denial of justice alleged.

The...