Walnut v. Newton

• Decision Date: 17 February 1912
• Citation: 82 N.J.L. 290,82 A. 317
• Parties: WALNUT v. NEWTON.
• Court: New Jersey Supreme Court

82 A. 317

82 N.J.L. 290

WALNUT

v. NEWTON.

Supreme Court of New Jersey.

Feb. 17, 1912.

(Syllabus by the Court.)

Appeal from District Court of Camden.

Action by T. Henry Walnut against Mahlon W. Newton. Judgment for plaintiff in the district court, and defendant appeals. Affirmed.

Argued November term, 1911, before GARRISON, PARKER, and BERGEN, JJ.

Joseph Beck Tyler, for appellant.

Joseph J. Summerill and William C. French, for appellee.

PARKER, J. This was an action of replevin in a district court, in which there was a jury trial, and a verdict and judgment for defendant.

The first cause for reversal argued is this: "Because trial was had by jury over the objection of the plaintiff because the jury was not demanded by the defendant within the time limited by statute; the plaintiff having offered to prove that no demand was made within the time limited by statute, which offer was refused by the court and a jury trial granted."

The situation is a little unusual and substantially raises the question whether the supplement of 1905 to the district court act (P. L. p. 494, § 4, C. S. 1991, pi. 117d) is to be applied, or the previous legislation in that regard, which is section 149 of the district court act of 1898 as amended by chapter 235 of the laws of 1903 (P. L. p. 505, C. S. 1999). Under the act of 1903 a demand of a jury must be made, and notice thereof given to the clerk, and the venire fees paid at least two days, exclusive of Sundays and holidays, before the time fixed for the trial, or "such demand shall be deemed to have been waived; but the judge may in his discretion grant a venire at the expense of the plaintiff to be taxed in the costs of suit notwithstanding the failure of a demand as hereinbefore specified." By section 4 of the act of 1905, ubi supra, in all proceedings had by virtue of the district court act, "the court shall, unless a jury be demanded by either party at least one day before the return day of the summons, try the issue and give judgment thereon in like manner as in case of the verdict of a jury." It will be observed that no discretion is vested in the court by this later act, but the trial must be without jury unless demand is made at least one day before the return of the summons. The constitutionality of this section was upheld in two decisions by separate branches of this court at the same term —Phoenix Pottery Co. v. Perkins Co., 79 N. J. Law, 78, 74 Atl. 258; Haythorn v. Van Keuren & Son, 79 N. J. Law, 101, 74 Atl. 502 —in which latter case the statute was held to be mandatory. So that if the point was properly raised in the case at bar, and is supported by the facts, and the act of 1905 is applicable, it was error to try the case with a jury.

The situation presented at the trial was this: The suit was in replevin, and defendant could not be served within the state. Recourse was accordingly had by plaintiff to section 122 of the district court act (P. L 1898, at page 603), which provides that when writs of replevin cannot be served in the manner required for a summons because of the defendant's absence, and his nonresidence in the county, the writ shall be served as the court may by an order direct. Such an order was made on July 20, 1911, after the return of the summons, for service on the defendant's accredited attorney in the county and on defendant personally without the state, and fixing August 3d as the day for trial, and service of the writ and order was made in both ways prescribed, whereupon the defendant appeared, and after adjournments the parties went to trial. The record does not show when the demand for jury was made. In the brief for appellant, plaintiff, we are informed that: "The plaintiff on September 7th, and also on September 14th, offered to prove that no demand for jury had been made one day prior to the return day, August 3, 1911, or one day prior to the date of adjournment, September 7, 1911, and objected to trial by jury. This offer was refused and exception was taken to trial by jury." All that appears in the statement of the case, however, is this colloquy between court and counsel after the trial had begun on September 21st: "Mr. Tyler: While counsel are examining this paper, I would like to have entered upon the record as a matter of form the objection that has already been made (it was made last week, if your honor will recall) that counsel for the claimant offered to prove that no demand had been made for a jury within the time limited by statute, and that offer was refused and the claimant excepted to any jury being sworn in this case. The Court: It will be so noted on the record." Taking the statement in the brief as correct, it is fairly inferable that a demand for jury trial had been made by defendant as early as September 7th, although as we view the case, even if no such demand had been made the court committed no legal error...