141 P. 843 | Ariz. | 1914
This cause originated in the superior court of Apache county and was removed to the superior court of Navajo county upon change of Venue.
This is an action ex contractu. The cause was tried upon the amended complaint of plaintiffs and appellees, answer of defendant and appellant to- plaintiffs’ amended complaint, defendant and appellant’s cross-complaint, and answer of plaintiffs and appellees to defendant, and appellant’s cross-complaint. From a judgment in favor of plaintiffs, in the sum of $212.85, defendant appeals.
The assignments of error regarded as essential to this decision will be considered in their order.
Defendant and appellant’s first and second assignments of' error may be considered together. They are as follows: (1) The court erred in overruling the defendant’s objection to the jurisdiction of the court, and upon the ground that there had been no compliance with the requirements of paragraph 1377, Revised Statutes of Arizona of 1901, as to the payment of costs of change of venue, and requiring the filing of a bond by the party moving for a change of venue. (2) The court erred in overruling the defendant’s objection to the jurisdiction upon the ground that the files in this cause were not legally on file in this court, and that said cause was not legally docketed in said court, by reason of the nonpayment of the filing fees required by law and by the rules of said court.
The record in this cause discloses that defendant and appellant filed a motion for change of venue in the superior court of Apache county, supported by the required affidavit. Thereafter, counsel for plaintiffs and appellees appeared and consented to change of venue. Thereupon, the court made an
The material part of paragraph 1377, Revised Statutes of Arizona of 1901, as amended by Act No. 74, Session Laws of 1907, is as follows:
“And the clerk of the proper court shall receive the papers and docket the cause in its order, and it shall be tried or otherwise disposed of as if it had originated in that court: provided, however, that the change of venue shall be deemed abandoned, unless the applicant shall also within said five days, give an undertaking to the opposite party, with sureties to be approved by the clerk of the court, to the effect that he will pay all costs that may be adjudged against him in said case. ’ ’
Paragraph 1380, Revised Statutes of Arizona of 1901, provides in part as follows:
“Each party shall be heard to urge his objections to any county or judge in the first instance, and the change of venue shall be to the most convenient county to which the objections of parties do not apply or are least applicable.”
It is to be noted that, in urging his objections to the jurisdiction of the superior court of Navajo county, defendant and appellant is endeavoring to take advantage of his own default.
Under a statute somewhat similar, the supreme court of Illinois, in Lowry v. Coster, 91 Ill. 182, held that, where a defendant obtains an order for a change of venue to another court under a statutory provision requiring him to pay the clerk the expenses attending the change within a specified time and he fails to pay such charges, the defendant cannot take advantage of his neglect to pay to defeat the change and have the cause remanded.
Aside from this point, however, the record discloses that when the case was called for trial January 11, 1913, counsel
Our statutes are silent as to what fees, if any, shall be paid to the clerk of the court to which an action may be_transferred upon change of venue. In the absence of any statutory provision of any rule of court regarding the payment of fees in such a situation, no jurisdictional question was involved in the failure of the parties to make payment of fees.
The third assignment of error is as follows: (3) The court erred in notifying counsel for defendant by letter that cases 347 and 348 had been set for hearing on the 11th day of January, 1913, when he intended to set those eases for trial on that day.
The record discloses that on December 28,1912, Judge SAPP wrote counsel for defendant and appellant as follows:
“This is to advise that cases 347 and 348, Greer v. Brown, have been set for hearing January 11, 1913.”
While a more definite notice of the setting of these eases for trial might have been given, the notice so given was certainly sufficient to place counsel for defendant and appellant upon inquiry. In the absence of any showing whatever to the trial court of unpreparedness to go to trial on January 11, 1913, the court did not commit error in ordering the cause to proceed for trial by reason of the alleged insufficient notice.
The last four assignments of error will be considered together. They are as follows: (4) The court erred in refusing to hear and decide the general demurrer to plaintiffs5'
An examination of the record discloses a general demurrer to the complaint and a motion to strike the answer to the cross-complaint, as well as a motion to strike certain portions thereof; also, a general demurrer to the answer to the cross-complaint.
When the ease was called January 11, 1913, counsel for defendant and appellant referred to these law questions as follows: “I think we have some demurrers here.” Page 124, Abstract of Record. Argument followed, during which the uncontradicted statement was made that the demurrers had been passed upon by the superior court of Apache county. The court finally made this ruling:
“If it is the same thing the court has passed upon heretofore, the court will not listen to it.”
And thereupon the cause proceeded to trial. The motions to strike were not raised.
The record in the superior court of Apache county is very meager; it shows no action taken upon the motions to strike, and the only reference to the demurrers is found in the
So far as the motions to strike are concerned, it does not appear that counsel for defendant and appellant brought them to the attention of the trial court in any manner whatever, and he cannot now predicate error upon his failure to properly present these motions.
With reference to assignment No. 6, it is sufficient to say that counsel for defendant and appellant, both at the trial and upon the motion for new trial, wholly failed to properly present to the court any sufficient showing of unpreparedness for trial or inability to procure the attendance of witnesses at the trial January 11, 1913.
Immediately upon the calling of the case January 11, 1913, counsel for defendant and appellant demanded a trial by jury. Lengthy argument followed upon the question of whether or not defendant had had an opportunity to demand a trial by jury at a previous call of the calendar. Section 23, article 2, of the Constitution of the state of Arizona, is as follows :
“The right of trial by jury shall remain inviolate, but provision may be made by law for a jury of a number of less than twelve in courts not of record, and for a verdict of nine or more jurors in civil cases in any court of record, and for waiving of a jury in civil cases where the consent of .the parties interested is given thereto.”
Paragraph 1389, Revised Statutes of Arizona of 1901, provides as follows:
One of the rules of the superior court of Navajo county provides:
£' The trial calendar will contain all cases in which issues of fact have been joined . . . and in which all preliminary motions and demurrers have been disposed of. . . . Parties desiring a jury must demand the same on the call of the trial calendar. On the first Monday of each month the trial calendar will be called and the eases thereon set for trial. ’ ’
A certificate of the superior court clerk in the record discloses that the trial calendar was not called upon the first Mondays of November and December, 1912; there is some uncertainty as to when the trial calendar was called in October. We do1 not consider this material, however, as, under the rules of the superior court of Navajo county, the case could not properly have been upon the trial calendar as certain law questions were still undetermined. Aside from the uncertainty of any action having been taken upon the demurrers, as referred to above, it clearly appears that no action whatever had ever been taken upon motions to strike, and •defendant never waived these motions by failure to present them until his first appearance in court January 11, 1913. Aside from this, however, it is to be noted that our constitutional provision regarding the right of trial by jury is extremely explicit. In so far as the statutory proviso above quoted or the rule of court conflict with the provisions of the Constitution, they become inoperative. Even if the case had been at issue prior to January 11, 1913, in the absence of an affirmative showing in the record that defendant had “ consented to a waiver of trial by jury,” his demand on January 11, 1913, did not come too late. Either party in civil actions has the absolute right of a trial by jury; it is not a privilege. And unless the parties “consent” to waive a jury in civil causes, it is error for the court to refuse either party his constitutional right.
Aside from any question as to whether the trial calendar had been called previous to the date of trial, January 11, 1913, and waiving any question as to whether the ease could
This is uniformly supported by all the eases bearing upon this question, and, for this reason, this cause is reversed and remanded to the superior court of Navajo county -for trial.
FRANKLIN, C. J., and CUNNINGHAM, J., concur.
ROSS, J., being disqualified and announcing his disqualification in open court, the remaining judges, under section 3 of article 6 of the Constitution, called in Hon. FRANK 0. SMITH, Judge of the superior court of the state of Arizona, in and for the county of Yavapai, to sit with them in the hearing of this case.
Application for rehearing denied.