Whallon v. Bancroft

• Decision Date: 01 January 1860
• Citation: 4 Minn. 70
• Parties: HENRY P. WHALLON vs. J. E. BANCROFT.
• Court: Minnesota Supreme Court

Page 70

4 Minn. 70

(4 Minn. R. p. 109.)

HENRY P. WHALLON vs. J. E. BANCROFT.

Supreme Court of Minnesota.

Error to district court, Dodge County.

At the general election in the fall of 1859, Whallon was declared elected register of deeds of the County of Dodge. Bancroft, claiming to have been elected, gave the notice of contest required by statute. As there was no general term of the district court to be held within one month after the election, the judge appointed a special term to hear the contest. When the case came on at the special term, Whallon moved to dismiss, claiming that the statute does not authorize the trial of such cases at special term. The motion was denied. He then filed an answer, and demanded a jury trial, which was refused. The contest was decided in favor of Bancroft, and Whallon brings writ of error.

Points and authorities for plaintiff in error: —

1. The court below erred in entertaining jurisdiction of the proceeding under objection as interposed by counsel of the plaintiff in error. Rev. Stat. ch. 6; Comp. Stat. 150, 151; also Comp. Stat. 479, 480, § 19.

2. The court had no power to appoint a special term for the trial of a controversy of this nature, unless it is a "civil or criminal" action, or was an "issue of law," and if it be a "civil action," and not authorized and controlled by the statute, then the court could not proceed to trial without a jury. Const. of Minn. art. 1, § 4.

Points and authorities for defendant in error: —

1. The district court, at special term, had jurisdiction of the case. Comp. Stat. 150, § 71; Comp. Stat. 479, 480, § 16.

2. The plaintiff in error having answered the notice and consented to go to a trial, the objection, if any existed, was waived and cured.

3. No substantial right of the plaintiff in error was affected by a trial at special term rather than at chambers. Comp. Stat. 544, § 96.

4. No right of trial by jury existed. The constitution gives no new right of trial by jury, but secures in future that right which by law existed prior to the adoption of that instrument. Comp. Stat. 151, § 74; Const. of Minn. art. 1, § 4; Work v. The State, 2 Ohio St. 296; Lee v. Tillotson, 24 Wend. 337; Norval v. Rice, 2 Wis. 22; Gaston v. Babcock, 6 Wis. 503; Ross v. Irving, 14 Ill. 171.

A. D. La Due, and John B. Brisbin, for plaintiff in error.

Wilder & Williston, for defendant in error.

FLANDRAU, J.

This was a proceeding in the court below to contest the election of a county officer, under chapter 6 of the old Rev. Stat. found on page 150-1, of the Compiled Statutes. This proceeding is instituted by the service of a notice by the party desiring to contest, upon the party in possession, within thirty days after the election. The notice announces the intention of the party to contest, and the cause of such contest; also the time and place of hearing; it should be served ten days at least before the hearing, and be returned to the clerk of the district court of the county where the contest is to take place. The clerk places the case upon the "issue docket" (calendar), as an appeal case, and, to all intents and purposes, it is in court as an appeal case, sent up from an inferior court, and is to be heard in its order by the court. It being highly important that cases of this character should be tried speedily, in order that the will of the people may not be defeated, the statute makes this further provision: "Provided, that if the case cannot be determined by the district court in term time, within one month after the termination of such election, the judge of the district court may hear and determine the same at chambers as soon thereafter as may be practicable."

When no regular term is to be held within thirty days next succeeding the election at which the case could be heard, it certainly becomes the duty of the judge to carry out the object and intent of the statute, which is expedition, by hearing the case at chambers when applied to for that purpose by either party, as soon as is compatible with the performance of his other duties. Now, what did he do in this case? It appears that on the 2d day of November, 1859, he was informed by the affidavit of Mr. Bancroft, that the election of Whallon was contested by him. The judge, thereupon, instead of appointing a day for hearing the case at chambers, appointed a special term in the County of Dodge, to be held on the 20th day of December, then next, thus postponing the hearing perhaps a few days or weeks longer than he might have done by appointing a shorter day at chambers. This was not strictly pursuing the directions of the statute, but the irregularity could in no way affect the jurisdiction of the court to entertain the matter when the day appointed arrived. What can be done at chambers can certainly be done in term; and we do not think the statute authorizing the appointment of special terms, intended to limit or restrict the business which could be transacted thereat, to any particular class of cases, but meant to confer upon the judge the power to call special terms in all cases when in his judgment the interests of the public require such terms to be held, and have left it to his discretion to determine what class of business shall be entertained at them. The language of the statute is as broad as it well could be. It is as follows: "The judge of any of the district courts is hereby authorized to adjourn the same from time to time during any term thereof; to hold adjourned terms of said court at any time he may deem proper, or appoint special terms in any county of his district for the trial of civil and criminal cases and issues of law, or any or either of them, giving thirty days previous notice thereof, &c. * * * and may in his discretion direct grand and petit jurors to be drawn and summoned for any adjourned or special term, in the manner prescribed by law," &c. The language, "for the trial of civil and criminal cases and issues of law, or any or either of them," used in designating the purposes for which special terms could be called, is not restrictive, but was designed to cover all business that could be transacted at a regular term. The particular language was selected because descriptive of the highest class of legal proceedings, and was designated to include all other kinds. It would be a strained and unusual construction, which would permit a court, under this general grant, to entertain a capital case, and exclude from its jurisdiction matters cognizable at chambers. The judge has control of the class of business which shall be heard at an adjourned or special term, in the power which he possesses and may exercise at discretion, of calling or omitting to call a jury.

The statute which authorizes these contested election cases to be heard at chambers, if not heard at a regular term within thirty days after the election, is merely cumulative, and was intended to prevent delay in the...