Rollins v. Nolting

Mitchell, J.

The record shows that the case was given to che jury about five o’clock in the evening; that they were out all night, and until seven o’clock the next morning, when, upon their informing the justice that they had not agreed on a verdict, he discharged them. The provisions of 1878 Gr. S. ch. 65, § 60, and ch. 84, § 10, authorizing a justice to discharge a jury because of their inability to agree, are, we apprehend, but declaratory of the pre-existing rule that if, after a jury has been out a reasonable time, the court, in the exercise of a sound discretion, is satisfied they cannot agree, he may discharge them.

1. Even assuming that the exercise of this discretion is reviewable in any case, and that the abuse of it could ever be taken advantage of by a party in a civil action, we are quite clear that there was in fact no abuse of it in this instance.' Where, in a case like the present, a jury had failed to agree on a verdict after being out fourteen hours, including a night, the justice had certainly reasonable ground for concluding that they would be unable to do so unless forced to it under unreasonable pressure and constraint.

2. The jury having been thus discharged, the defendant demanded of the justice to direct the proper steps to be taken for issuing a venire for a new jury. The justice then called on the defendant for the jury fees prescribed by 1878 G-. S. ch. 70, § 30, as amended by Laws 1891, ch. 83. The defendant declined to advance the jury fees at that time, because as yet no jurors had been selected or venire issued. The justice thereupon held that, because of this refusal to deposit the requisite jury fees, the defendant was not entitled to a jury, and proceeded to the trial of the cause without one. In this the justice was right.

The plain meaning of the statute is that the party calling for a jury must in the first instance pay their fee. Of course, if he succeeds in the action he is entitled to recover it from the other party as disbursements. And, while the statute nowhere provides in express words when the fee shall be paid, yet we think it clearly implies that payment should be made in advance. It should accompany the demand for a jury, or at least be made on request of the justice; and until the amount is deposited the justice is not required to take any steps towards issuing a venire. A refusal to pay the fees when thus demanded amounts to a waiver of the right to a jury trial. Randall v. Kehlor, 60 Me. 37.

It can hardly be necessary to add that if there be a mistrial because of the disagreement of a jury, and a party calls for a second one, he must also pay its fees.

3. The defendant appealed to the district court on questions of law alone, and, after the return had been filed in that court, the plaintiff noticed the case for argument before the court at chambers. This the defendant assigns as error. 1878 G-. S. ch. 66, § 244, as amended by Laws 1868, ch. 90, provides that, “in addition to the general terms, the district court is always open * * * for the hearing and determination of all matters brought before the court or judge, except, the tried of issues of fact.” This language is certainly broad enough to include issues of law, and all questions of law alone. A comparison of the original section with the amended one plainly shows that the amendment of 1868 was intended to accomplish this very end, and set at rest whatever doubt might have previously existed as to what matters might he brought on for hearing before the court at chambers. 1878 G. S. ch. 65, §§ 118, 123, (which were in existence long before the amendment of 1868,) are in no way inconsistent with this view. As was said in Chesterson v. Munson, 27 Minn. 498, (8 N. W. Rep. 593,) these provisions were intended to hasten, and not delay, the trial of appeals from justice’s court.

Judgment affirmed.

Vanderburgh, J., absent, took no part.

(Opinion published 54 N. W. Rep. 1118.)