Garrison v. Hollins, Burton & Co.

| Tenn. | Sep 15, 1879

Cooper, J.,

delivered the opinion of the court.

Hollins, Burton & Co. brought this suit against J. L. Garrison, sheriff of McMinn county, and the other defendants as the sureties on his official bond, for his failure to make the money on a particular execution in their favor. Verdict and judgment were rendered for the plaintiffs below, and the defendants appealed in error.

During the pendency of the suit in the court below, it was dismissed by the plaintiffs as to one of the-sureties, and it is now argued that this operated to dismiss the suit as to all of the defendants. But since the act of 1789, ch. 57, sec. 5, brought into the Code, section 2789, all joint obligations and promises have been made joint and several, and subsequent statutes have not only provided for the right to sue any one or more of such obligors, but for the dis-mission of suits, in all actions on contracts, as to one or more of those jointly sued, without prejudice to-the right of recovery against the other defendants. Code, section 2790.

Neither party in his pleading tendering an issue demanded a jury, the declaration being filed on the 11th of August, 1875, and the pleas on the 10th of April, 1876, when issue was joined. ^ On the 12th of April, 1877, when the cause was called for trial, the plaintiff moved that the cause be tried by the court, to which the defendant objected and demanded a jury. The court held that the plaintiff was entitled, under the act of 1875, ch. 4, to have the case tried without a jury, and it was accordingly tried by the judge alone. This is assigned as error.

The act in question provides, in substance, that whenever any suit is brought in any of the courts of record in this State, which is triable by jury, either party desiring a jury shall, in case of original suits, demand a jury in his first pleading tendering an issue triable by jury, and in the case of all other suits shall demand a jury within the first three days of the trial term, and if no such demand is made, “and in the maimer and time as aforesaid/’ the clerk shall place such' cause on a docket to be styled the “non-jury docket;” and a failure to demand a jury as aforesaid shall be deemed and held, conclusively, “an agreement of the parties to submit all issues and questions of fact to the decision of the judge without a jury.”

It is conceded that the ruling of the Circuit Judge was in conformity with the provisions of this act, but the ai’gument is, that the act itself is unconstitutional, because violative of the provision of the bill of rights, which declares that, “the right of trial by jury shall remain inviolate.” Const. 1870, Art. 1, sec. 6. The act does not in terms interfere with that right. On the contrary, it carefully secures to the citizen a jury trial upon his (jpmand. The object of the Legislature, as shown by other provisions of the statute, was to diminish the expense attending the administration of justice; for, while giving the Circuit Judge the power of determining at what time of the term the non-jury docket shall be disposed of, it expressly provides that during the period of its disposition no jury shall be in attendance. Neither the letter, nor the intention of the act, therefore, can be said to be violative of' the Constitution, unless it be held that any provision on the subject would be unconstitutional. But it could not seriously be insisted that suitors might not waive the right of trial by jury, if they saw proper so to do, or that an agreement of waiver once entered into would not be obligatory. The act does no more. It ■only declares what voluntary acts of the parties shall Re deemed an agreement on their part to waive a trial by jury: And we have held at this term that it is in the discretion of the Circuit Judge, upon good cause shown, to allow an amendment of the pleading of either party so as to demand a jury, if the application be promptly made, and the omission to make the demand be satisfactorily explained. Eo application of that character was made in this case. It has long been the settled law of this State, that the Legislature may impose reasonable conditions on the exercise of the right of trial by jury, the most notable instance of which is found in the extension of the jurisdiction of justices of the peace to give judgment without a jury, the right to a trial by jury being, however, reserved to the party by the right of appeal. The act under consideration is clearlf* only a reasonable regulation, with a view to the public interest, of the right of trial by jury, not a violation of. that right, and within the competency of the Legislature.

There is no error in the record, and the judgment will be affirmed.