Van Sickle v. Kellogg

• Decision Date: 12 July 1869
• Citation: 19 Mich. 49
• Court: Michigan Supreme Court
• Parties: Henry Van Sickle v. Mary E. Kellogg

19 Mich. 49

Henry Van Sickle v. Mary E. Kellogg

Supreme Court of Michigan

July 12, 1869

Heard May 12, 1869

Error to Oakland Circuit.

This was an action brought into the Circuit Court for the County of Oakland by general and special appeal from the judgment of James S. Dewey, Esq., one of the Justices of the Peace for that County. The ground of the special appeal was that the Justice, after issue joined and an adjournment, had granted the motion of the plaintiff and ordered a trial of the cause by a jury. The special appeal was disallowed in the Circuit Court and after trial and judgment for the plaintiff below upon the general appeal, the defendant below brings the case into this Court by writ of error.

Judgment of the Circuit Court affirmed with costs.

W. B Jackson, for plaintiff in error.

The demand in this case was not made until after issue joined and after the cause was adjourned, when the parties appeared upon the adjourned day for trial. It was then too late, and the party had waived her right to the same. 2 Comp. Laws, page 1,065, § 3,756; Dempsey v. Page, 4 E. D. Smith N. Y. p. 219; Gale v. Barnes, 1 Cowen, page 235.

The Constitution of this State, Article 6, Section 27, provides, "that the right to trial by jury shall remain, but in all civil cases shall be deemed to be waived unless demanded by one of the parties in such manner as shall be prescribed by law." If a party voluntarily abstains from demanding the right to trial by jury, in a given case, at the time and in the manner prescribed by law, we think it may be judicially held that it is waived. "Hence the statute enacting that such act shall be regarded a waiver is valid."--8 Ind. p. 218.

"The right of trial by jury is not an attribute, or inalienable in its nature and character, but rather a privilege, which may be waived or forfeited."--Wright, Justice--Wilkins v. Traynor, 14 Iowa, p. 393; Hogan v. Sherman, 5 Mich. p. 60; Hill v. The People, 16 Mich. p. 357 S. P.; 15 Mich. p. 325.

C. & C. S. Draper, for defendant in error--Cite Wheeler v. City of Chicago, 24 Ill. 105; Bonner v. City of Chicago, 24 Ill. 105; Parks v. Goodwin, 1 Doug. Mich. 56; Rawson v. Parsons, 6 Mich. 401; People v. Allen, late Sheriff of Ontario, 6 Wend. 486; Doll v. Anderson, 27 Cal. 248.

Cooley, Ch. J. Campbell and Christiancy, JJ., Graves, J. concurred.

OPINION

Cooley, Ch. J.

The principal question in this case is, whether, where a party to a suit before a Justice of the Peace, has failed to demand a jury after the joining of issue and before an adjournment of the case, but calls for one on the adjourned day, and the Court permits one to be summoned against the objection of the opposite party, a trial of the case by this jury is such a mis-trial as would require the Circuit Court to reverse, on special appeal, the judgment rendered on their verdict.

The Constitution, Article VI, § 27, provides that "The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases, unless demanded by one of the parties in such manner as shall be prescribed by law." The statutory provisions respecting the demand for a jury trial in Justices' Courts are as follows: "After an issue of fact joined, and before the first adjournment and before the Justice shall proceed to an investigation of the merits of the cause by an examination of a witness, or the hearing of any other testimony, either of the parties or the Attorney of either of them, may demand of the Justice that the cause be tried by a jury and pay to the Justice the lawful fees of the jurors."--Comp. L. § 3,755. "Either party who shall not, at the time of joining issue in any cause, and before the same shall be adjourned, require a trial of such cause by jury, shall be deemed to have waived the same."--Comp. L. § 3,756.

It will be seen by an examination of the constitutional provision, that what the party waives by a failure to make such demand as shall be prescribed by a law, is that absolute and unqualified right to a trial by jury which the Constitution secures to him when the demand is made, and which is dependent on the will or discretion of no other person and cannot be taken away from him. The Constitution does not in terms prohibit a trial by jury in case the statutory demand is not made, or employ any words which indicate an intent that, in such a contingency, the trial must be by the Court; but the provision is limited to a negation of the right in a party who has failed to make the demand to insist upon such a trial afterwards. And the question remains whether the Justice may not in his discretion, notwithstanding a failure to make the demand, allow the party a jury trial, or whether if he does so, the opposite party can complain of such trial as a legal injury.

The right of trial by jury in all cases proceeding after the course of the Common law, has always been deemed an important privilege, of which the party was not to be deprived without his consent, even by legislative enactment. Indeed, in criminal trials the party himself was not allowed to waive it, and his consent that the Judge alone should adjudicate his case, was absolutely void in law. The constitutional principle which underlies the right is one to which the people governed by the Common law have clung with, perhaps more tenacity than to any other, and they have justly regarded it as not preserving simply one form of investigating the facts in preference to another, where both would have attained the same result, but as securing the mode of trial which was best calculated to ensure a just result and to secure the citizens against the usurpation of authority and against arbitrary or...