Mead v. Darragh — 1 Hilt. 395

Majority

p. 395

Joshua Mead v. John Darragh.

Headnote

The defendant having failed to appear in a district court, on the return of a summons, the cause was adjourned to a subsequent day, and the plaintiff left the court-room. The defendant subsequently appeared, and the justice noted his appearance and received his answer. He demanded a jury, but the justice refused it upon the ground that he had no power to issue a venire after the adjournment. Upon the adjourned day the defendant renewed his demand, which was again refused. Held, — error. (Ihubaham, J., dissenting.)

A mere adjournment does not deprive a party of the right to demand a jury, but only an adjournment made after issue joined.

A jury cannot be demanded until issue lias been joined.

p. 396

If made by the defendant during the absence of the plaintiff from the court-room, it is the defendant’s duty to bring home to the plaintiff notice of such demand.

A justice of a district court has the right, in the exercise of a sound discretion, to permit a defendant to appear and answer at any time before proof is taken on behalf of the plaintiff. Such an appearance carries with it all the rights incidental to a regular appearance on the return of a summons — e. g., the right to demand a jury.

Per Ikgiíaham, X, dissenting. — The justice of a district court has no right to receive an appearance and answer of a defendant after tile cause has been adjourned upon his default and the plaintiff has left the court-room. Such an appearance and answer being themselves irregular, and no issue being properly joined, the defendant has no right to demand a jury.

Appeal by defendant from a judgment of a district court. On the return of tbe summons in tbis case tbe defendant failed tdftppear. On the application of tbe plaintiff, tbe cause was adjourned, and the plaintiff left the court-room. Thereafter, but on the same day, and while tbe court was still in session, tbe defendant entered, and, at bis request, tbe justice entered bis appearance and received bis answer. He at tbe same time demanded a jury, which the justice refused, upon the ground that he had no power to order a jury, tbe cause having been once adjourned. On tbe day to which tbe cause was adjourned, the defendant renewed the demand, and excepted to the decision of the justice, refusing to order a jury. Judgment having been rendered for the plaintiff, the defendant appealed.

In this case, on the day the summons was returnable, but after the cause had been adjourned, and while the court was in session, the defendant appeared before the justice, put in a general denial to the complaint, and demanded a jury. The justice received the answer, but denied the application for a jury, on the ground that it was too late, an adjournment having been granted. There was no power conferred on the justices of district courts by statute to open defaults, but in Jenkins v. Brown (21 Wendell, 454), Cowen, J., says, in substance, “I am strongly inclined to think that the justice might, on cause shown, let in a defendant to plead at any stage of the cause, on terms

p. 397

sucb as shall save all reasonable chance of preparation to the plaintiff, while it subserves the purposes of justice by promoting a trial upon the merits, without dispensing with the exercise of proper diligence on the side of the defendant.” In that case the power of the justice was recognized as matter of discretion, and that discretion having been exercised adversely to the appellant, the Supreme Court refused to interfere. Assuming that the justice in this case had no power to open the default, then the demand for a jury was properly denied, the whole of the proceedings before tbe justice being coram nonjudice, and void. But if the justice had power to let the defendant in to plead, and no objection to that course was taken or made by tbe respondent, then the demand for the jury was in due time, and the refusal of the justice to issue a venire was an error. In Bayles v. Oranefy. Cowen, 86), it was held that a mere adjournment did not deprive the party of the right to insist upon a jury, although in that case the adjournment had was to an hour on the same day. In Shannon v. Kennedy (1 E. D. Smith, 346), the right of the defendant to demand a jury at any time during the day on which issue is joined is suggested and recognized, but coupled with the doctrine that it is the duty of the defendant to bring notice of such demand home to the plaintiff. In that case the demand was made of the justice on the day of issue joined, after the plaintiff had left court, but not on tbe day to which the cause was adjourned, and the plaintiff had no notice of the demand. In this case the demand was repeated on the day to which the cause had been adjourned, and the justice again declined to issue the venire. The question presented by these facts is not free from difficulty; but I tbink tbe justice has tbe right to permit tbe defendant to to appear and answer before any proof is taken on the plaintiff’s side, and having granted that favor, it must exist with all the rights incidental to an appearance when the summons is returnable. The justice may impose terms, but none were imposed here. He did not deny the venire as a condition upon letting the defendant in to answer, but upon tbe ground that he had no power to issue one, an. adjournment having been bad. In this

p. 398

be erred. When tbe issue is joined, a demand may be made for a jury, and not before; and tbe adjournment contemplated by tbe statute is an adjournment after issue joined, and subsequent to tbe day on wbicb such adjournment is made, tbe object being, to prevent tbe delay wbicb would ensue by permitting tbe defendant to demand a jury at any stage of tbe cause before proof taken. On tbe return day, tbe justice, doubtless, bad no power to receive tbe defendant’s answer, because tbe plaintiff was not present; but be bad on tbe day to wbicb tbe cause was adjourned, and having entered tbe defendant’s appearance and answer, it must be beld to relate to that day. Tbe issue then being joined, tbe defendant demanded a jury, to wbicb be was entitled (see Shannon v. Kennedy, 1 E. D. Smith, supra, 348), asu tbe justice should have issued a venire. Having refused so to do, I think tbe judgment should be reversed.

A jury may be demanded after issue joined, and before tbe court shall proceed to inquire into tbe merits of tbe case, though it cannot be demanded after the day on wbicb an order has been made for an adjournment. Laws of 1813, chap. 86, § 95; Laws of 1820, chap. 1, § 3. It was demanded in this case after issue joined, and on tbe day on which the order was made for the adjournment. It was irregular, therefore, for the justice, on the adjournment day, to go on and try tbe cause without a jury. Tbe justice returns that be bad adjourned tbe cause on the plaintiff’s application, but that the defendant appearing after-wards, he allowed him to plead. This makes no difference. When tbe defendant bad.joined issue by pleading, be bad a right to demand a jury, wbicb be did immediately thereafter, and tbe justice could not try tbe, case without a jury, unless with tbe defendant’s consent. Tbe judgment should be reversed.

I do not feel satisfied with the conclusion that the justice was regular in receiving an answer after the adjournment of the case. The plaintiff bad left tbe court; be had no knowledge of the pleading; and it nowhere

p. 399

appears that the knowledge of such answer being put in ever' came to the plaintiff. To sanction such a course of proceeding in a justice’s court would open a door to looseness and irregularity, which should not be permitted. I think no answer was properly put in, and no issue properly joined, and that the demand for a jury was properly refused.

Judgment reversed.