Brown v. Irwin , 21 Vt. 68 ( 1848 )

The opinion of the court was delivered by

Kellogg, J.

This was a petition preferred to the county court, praying to have the judgment of a justice of the peace in favor of the petitionee and against the petitioners set aside and vacated for the alleged cause, that the justice, after the petitioners had been defaulted and the case continued for the assessment of damages, refused, at the day to which it was adjourned, to call in a jury upon the application of the petitioners, to assess the damages. The petition assigns no other cause of complaint. The county court dismissed the petition, upon the ground that the case did' not come within the statute, which, in the exercise of a discretionary power, would authorize the court to vacate the judgment of the justice.

It is now insisted by the petitioners, that the refusal of the justice to award a venire in the case, was the denial of a right secured to them by law, and that the case falls within the provisions, of chapter thirty three, section eight, of the Revised Statutes. The statute referred to clothes the county courts with a discretionary power to grant relief upon petition, in cases falling within the purview of the statute ; but their decisions in such cases are not subject to revision in this court, unless they err upon some question of law, as applicable to the case. It was so held in Shepley v. Scagel, decided upon the last circuit, in Washington county. The county court, in the case at bar, held, that the case did not fall within the provisions of the statute; and if this is erroneous, it is such an error as may be corrected in this court. The statute, authorizing petitions to vacate the judgments of justices of the peace, contemplates cases where the petitioner has been deprived of his day in court, or at least denied some right secured to him by the laws of the land. It is not denied, that the petitioners had their day in court, and the question arises, were they deprived of any legal right I The damages were assessed by the justice, upon a hearing of the parties and their proofs.

The statute defining the powers and duties of justices of the peace secures to either party a trial by jury, if demanded ; and the term trial, as here used, we apprehend, means that trial of the issue, which precedes the judgment. In the case at bar it appears, that the judgment was rendered upon the default of the petitioners, and the subsequent assessment of the damages was not the trial of an issue, and not the trial contemplated by the statute. This assessment might be made by the court at any convenient time, without any adjournment of the cause, and without even notice to the adverse party. We think it quite clear, that the justice act, under the circumstances of this case, did not give to the petitioners the right to have the damages assessed by jury. And even if we were to admit, (which we are by no means prepared to do,) that the justice might, in the exercise of his discretion, have awarded a venire for a jury to assess the damages, yet we are well satisfied, that his refusal to do it is no ground of error.

But it is urged, that section thirty two of the statute relating to county and supreme courts' is applicable to the case at bar, and fully authorized the justice to award a jury for the assessment of the damages. This proposition is not admitted. We do not think the section referred to can be applied to the case under consideration. It. is limited to proceedings in the county and supreme courts, and is not applicable to proceedings in justices’ courts. But if its applicability to proceedings in justices’ courts be conceded, it would not avail the party. The denial of a jury in such case, being the exercise of a discretionary power vested in the court, is no ground of error. For if the section above referred to be applicable to proceedings in justices’ courts, it necessarily gives to justices of the peace the same discretionary power, as to the manner of the assessment of damages, that the section confers upon the county courts.

It is farther insisted,- if there is no statute authorizing justices to assess damages, in cases like the one under consideration, by the intervention of a jury, that, there being no statute denying the right, the right ’exists at common law, and should, therefore, have beeg, granted by the justice.

The common law has been adopted in this state, so far as it is applicable to our situation and circumstances and is not repugnant to the constitution and laws of the state. But whether the provisions of the common law, in relation to the assessment of damages in suits where judgment is rendered upon default, have been adopted, may well be doubted. The thirty second section of the statute relating to the county and supreme courts provides a mode for the assessment of damages in such cases, somewhat different from the common law; and hence, we conclude, that those courts can only assess damages in the manner provided by the statute. If this part of the common law has been adopted here, and is applicable to such cases in justices’ courts, (which we would by no means intimate,) it is certainly quite remarkable, that no instance is known to have occurred in the state, in which justices, upon judgment by default, have resorted to the intervention of a jury to ascertain the damages. This fact may well lead us to doubt, whether justices of the peace, in such cases, have authority to award a writ of inquiry according to the course of the common law. But if it be admitted, that they have such authority, we do not think the admission would avail them in the case at bar.

It is said by Comyn, in his Digest, that in all cases where the issue is tried by a jury, and damages are recoverable, the damages regularly ought to be assessed by the jury; and if they do it not, where damages only are recoverable, the verdict shall be void. And he farther remarks, that, if the jury who try the issue omit to assess the damages, “ the'omission cannot be supplied by a writ of inquiry;” and he assigns as a reason for it, that “the defendant will lose the benefit of a writ of attaint, if the damages are excessive.” The same author, (Comyn,) says, “ When there is judgment without any issue tried, damages shall be assessed by the court, or by a writ of inquiry.” 3 Com. Dig., Tit. Damages E, 1 and 2. In Bruce v. Rawlins, 3 Wils. 61, on motion to set aside the inquisition on a writ of inquiry, for excessive damages, in an action of trespass, Chief Justice Wilmot is reported to have said, “ This is an inquest of office to inform the conscience of the court, who, if they please, may themselves assess the damages.” In Hewet v. Mantell, 2 Wils. 374, the learned judge declared to the same effect. From these authorities it would seem, that, in cases like the one under consideration, by the common law, the damages might be assessed either by the court, or by jury upon a writ of inquiry.-

In the case at bar the justice, instead of awarding a writ of inquiry to inform his conscience, saw fit to assess the damages himself. And we hold that he had a right so to do.

' The judgment of the county court is therefore affirmed.