Sherman v. Green

Tbe plaintiffs recovered a judgment in a Justice’s Court against the defendant; tbe defendant appealed therefrom to tbe County Court. Tbe justice in bis return, under tbe record of proceedings at tbe joining of issue, lias these words, “ Defendant appeared in person and by counsel and filed an answer in writing cmd demanded ajimy, and stated that they were ready for trial.” Tbe words “ and demanded a jury ” bad a line drawn through them in tbe return as filed, and upon tbe margin of the return appeared these words, “ Defendant asks for a trial by jury and asked that a venire be issued in .the usual forin required by tbe Code.” On tbe return of tbe second day’s proceedings these words appeared, “Defendant insists on a trial by jury .and asked that a venire issue in tbe usual form. That a jury was demanded by tbe defendant at the joinder of tbe issue of tbe trial, and defendant objects to proceeding to trial in this issue without a jury, and now tenders therefor $1.75 for such jury.

“ Plaintiffs object to tbe allowance of tbe jury, on tbe ground that tbe defendant joined issue and took an adjournment without making any demand therefor.”

It. does not appear whether tbe memorandum of tbe demand for a jury by tbe defendant, which appeared upon tbe margin of tbe return, was intended as part of tbe record of tbe proceedings of tbe day of tbe joinder of issue, or of tbe proceedings upon tbe adjourned day. Tbe plaintiffs insist that it refers to tbe demand made on tbe adjourned day; tbe defendant claims that it was tbe demand made at tbe joinder of issue.

Tbe plaintiffs made a motion in tbe County Court for a further or amended return which should show when this demand for a jury was made, claiming that tbe demand made at tbe joinder of issue bad been waived by tbe defendant, and that tbe demand set forth in tbe margin referred to tbe demand made by him upon tbe adjourned day. Tbe motion for a further return was denied and tbe judgment reversed upon tbe ground that tbe defendant bad been improperly deprived of a trial by jury of tbe issues in tbe action.

Tbe motion for an amended return was denied rrpon tbe ground that there was no power in the court to compel tbe justice to make an amended return which would contradict tbe original return.

It will be seen, therefore, that it is important to have returned to the court the fact whether such demand for a trial by jury was made by the defendant at the time of the joining of issue, and, if so, whether it was waived. The entry in the margin of the justice’s return leaves these questions unsettled. From the position of the entry upon the record, it leaves it uncertain as to whether it refers to the day of the joinder of issue or to the proceedings had upon the day to which the trial was adjourned.

To ask the justice to make a return which will clear up this uncertainty is not to ask him to contradict or falsify his original return, but to cure it of all uncertainty, and it, therefore, does not come within the principle of the cases cited to us, that a justice cannot be asked to make an amended return which will falsify or contradict the one originally made by him.

The order of the county judge denying the further amended return should, therefore, be reversed, and an order made, requiring such further or amended return, as asked for in the plaintiffs’ notice of motion therefor, and the judgment of the county judge reversing the judgment of the justice of the peace should be reversed, with directions to the County Court to hear the appeal upon the return of the justice, as amended and corrected.

Let an order be entered accordingly, with costs and disbursements of this appeal.

concurred.

Order reversed and order made requiring an amended return. Judgment of County Court reversed and County Court directed to hear appeal on amended return, with ten dollars costs and disbursements to appellants.