Gates v. Knosby

Jan 21, 1899
Reporters:
,
Before:
Robinson
Robinson, C. J.

*2411 *240This cause is submitted to1 us on a certificate of the trial judge which shows the following facts: Action ivas commenced by the plaintiff agаinst the defendants in the court of William Hayward, justice. When the time for trial arrived, Hayward was sick, and called in R. A. Smith, another justice of thе same toAvnship. The parties appeared, a jury was empaneled, and the cause was submitted, but the jury failed to agreе, and, in the absence of the parties and their attorneys, and without their knowledge, Avas discharged by the justice, Smith, and, believing jhis con*241nection with the case was ended, he did not issue a new precept for another jury, and did not set the time for a second trial. Twenty-nine hours after the jury disagreed, the plaintiff demanded of Smith that he issue a new precept. Smith requested Hayward to issue it, but the latter was unable to do so, and, by agreement between the justices, Smith, at the end of two days and one hour from the time the jury disagreed, issuеd a new precept, making it returnable two hours later. The plaintiff appeared at the hour fixed for the trial, but the defendants did not appear. Evidence was ‍​‌‌‌​​​‌​‌‌​‌‌​‌​​‌‌‌​​​‌‌‌​​​‌​‌​‌‌​‌​​​​‌​‌​​‌‍introduced by the plaintiff, a verdict was returned in her favor, and judgment thereon was rendered. Thе proceedings in error were for the purpose of reviewing that judgment. The district court reversed the judgment, and remanded the сause, with directions to the .justice to entertain jurisdiction of the case and proceed to-retry it, after notice to- the parties and their attorneys. The; plaintiff complains of so much of the judgment as reversed that of the justice, and the defendаnts complain of so much of it as remanded the cause to the justice for further proceedings. ,

I. The facts certified do nоt show that the defendants had any knowledge of the second trial, and one of the questions certified indicates that notice thereof was not given to them. The first question submitted to us is stated as follows : “Under the foregoing statement of facts, did the justice of the pеace, by not issuing a venire for another jury at the time that the first jury was discharged, and by waiting two full days before issuing such venire, lose jurisdiction to try the case, or could he thereafter proceed and try the case, and determine the issues between the parties, and render a valid judgment against the defendants upon the verdict of the jury returned in the second trial of the case ?” Section 3549 оf the Code of 1873, which was applicable to this case, is as follows: “The justice may discharge the jury, when satisfied that they cannоt agree, and shall immediately issue a new precept for summoning another, to appear at a time *242therein fixed, not mоre than three days distant, unless the parties otherwise agree.” We are required to determine the meaning and force of the word “immediately,” as used in that section. When ■ applied to time, the word strictly defined means without interval of time; at once; instantly ‍​‌‌‌​​​‌​‌‌​‌‌​‌​​‌‌‌​​​‌‌‌​​​‌​‌​‌‌​‌​​​​‌​‌​​‌‍(Webster’s International Dictionary). But as applied to legal proceedings it does not necessarily exclude all interval of time, and in many cases it has been held to mean within such time as is reasonably sufficient in which to accomplish the act to which it is аpplied. Gaddis v. Howell, 31 N. J. Law, 313; 9 Am. & Eng. Enc. Law, 931, note 2. The legal signification of the word is much the same as that of “forthwith.” Davis v. Simma, 14 Iowa, 154; 8 Am. & Eng. Enc. Law, 571; Black Law Dictionary, 592. Sectiоn 3552 of the Code of 1873 related to actions in justice’s courts, and provided that “in cases of dismissal, confession, or on the verdiсt of a jury, the judgment shall be ‍​‌‌‌​​​‌​‌‌​‌‌​‌​​‌‌‌​​​‌‌‌​​​‌​‌​‌‌​‌​​​​‌​‌​​‌‍rendered and entered upon the docket forthwith.” • This court has held that the provision must be construed reasonably; that a judgment upon a verdict returned at 9 o’clock at night may be properly entered the next morning (Knox v. Nicoli, 97 Iowa, 687); that when the verdict is returned at 10:30 o’clock at night judgment thereon may properly be rendered at 11 o’clock of the next day (Davis v. Simma, 14 Iowa, 154) ; and that “forthwith,” as used in that ‍​‌‌‌​​​‌​‌‌​‌‌​‌​​‌‌‌​​​‌‌‌​​​‌​‌​‌‌​‌​​​​‌​‌​​‌‍statute, means within a reasonable time (Burchett v. Casady, 18 Iowa, 342). See, also, Lyon v. Comstock, 9 Iowa, 306. But in order to ascertain the true meaning of the word in question we must consider not only its рermissible use, but the conditions to which it is made applicable by the statute. Trials in justice’s court are less formal and more speedy, as a rule, than are trials in courts of record. The statute does not provide for notice to parties of the issuing of а new precept, and of the time fixed for a new trial, but seems to contemplate their presence in court when the action is taken. It is entirely reasonable to require the parties to take notice’ of what is done at the time the jury is dischargеd, but it is not reasonable to *243require them to be in constant attendance upon the justice for an indefinite period of time, until hе shall take the action required by the statute. The phrase “not more than three days distant,” contained in the statute, refers to the time when the new precept is issued, and if that be not when the jury is discharged the time for issuing the precept may be as variable аs are the various ‍​‌‌‌​​​‌​‌‌​‌‌​‌​​‌‌‌​​​‌‌‌​​​‌​‌​‌‌​‌​​​​‌​‌​​‌‍meanings and applications of the word “immediately.” “We do not think that this was the legislative intent, and conclude that by delay in issuing the second venire, in this case, no agreement by filie parties having been made, the justice lost jurisdiction to try the case without further notice, and the district court properly held that the judgment rendered was erroneous.

2 II. We are next required to determine whether the district court erred in remanding the cause for further proceedings. Section 3603 of the Code of 18I3’ provided that in proceedings on writ of error the district court might render final judgment, or remand the cause to the justice for a new trial, or suсh further proceedings as should be deemed proper, and might prescribe the notice necessary to bring the parties again before the justice. The failure of the justice to issue a new precept immediately did not operate to dismiss the сause, but it remained in court for further proceedings after proper notice should have been given. Its legal condition was similar to that of a case docketed by the justice in which no notice has been served nor appearance by the defendant entered. No justifiable end would be accomplished by dismissing the cause and requiring that it be commenced anew befоre the plaintiff can have a trial on the merits of hear cause. We conclude that the action of the district court in remanding the cause was correct. The judgment of the district court, is, on both apneals, AFFIRMED.