In re LAMBERT et al.
No. 1141.
Municipal Court of Appeals for the District of Columbia.
Argued Dec. 3, 1951. Decided Jan. 30, 1952.
86 A.2d 411
The appellee asks us to consider the portion of the judgment relating to the counterclaim, i.e., decontrolling of these premises on July 1, 1950. However, we feel that by failing to file a cross-appeal from that portion of the judgment she is precluded from now bringing the question before us. 1915 16th Street Co-operative Ass‘n v. Pinkett, on rehearing, D.C.Mun. App., 85 A.2d 58. An appellee is not entitled to allege error in the rendition of judgment against him on his counterclaim where he failed to prosecute an appeal therefrom. Clark v. Killian, 103 U.S. 766, 26 L.Ed. 607; 5 C.J.S., Appeal and Error, § 1498(2).
The trial judge awarded the appellee attorney‘s fees covering services in the trial. Appellee now asks us to remand the case to the trial court to have attorney‘s fees determined for the handling of this case on appeal. The procedure to be followed in this case has been set out in Heitmuller v. Berkow, 83 U.S.App.D.C. 342, 171 F.2d 741, where it was held that the fixing of attorney‘s fees for services rendered in representing a tenant on appeal were to be fixed by the trial court. See also our recent decision of Lincoln Loan Service v. Motor Credit Co., D.C.Mun. App., 83 A.2d 332.
The case is therefore affirmed and remanded to the trial court for consideration of the question of attorney‘s fees on appeal.
Affirmed.
Edward A. Beard, Asst. Corp. Counsel, Washington, D. C., with whom Vernon E. West, Corp. Counsel, Chester H. Gray, Principal Asst. Corp. Counsel, and John A. Earnest, Asst. Corp. Counsel, all of Washington, D. C., were on the brief, for appellee.
Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.
HOOD, Associate Judge.
In a proceeding in the Juvenile Court two infant children were found to be without adequate parental care1 and they were committed to the Board of Public Welfare. The father of the children testified at the hearing and apparently consented to the commitment. The mother of the children brought this appeal.
The first error assigned is the refusal of the court to grant a trial by jury on the issues involved. No contention is made that appellant or the children had a constitutional right to jury trial. Such contention could not be validly made because this was a statutory proceeding to determine the best interests of the children,2 and not a criminal or common-law proceeding. From time immemorial cases involving custody of children have been heard and determined by a chancellor or a judge exercising equity jurisdiction.
Appellant rests her contention on the section of the Juvenile Court Act embodied in
It is appellant‘s contention that the last sentence of the above-quoted paragraph gives her or anyone concerned the right to trial by jury in “all cases of children“. If the statute, as some statutes do, clearly gives the right to a jury trial, then of course the court would have no right to deny it.3 However, our statute does not clearly say that the right to a jury trial shall be had in all cases of children. It specifically says trial shall be without a jury “unless a jury be demanded by the child, his parent, or guardian or the court.” We do not believe that Congress intended in this indirect way to make a sweeping grant of the right of jury trial to all persons involved in all cases involving children. Had it intended to make so drastic a change, we feel it would have said so in a plainer and more direct manner. Problems presented in
Appellant also claims that she was never properly served with process. However, her attorney entered his appearance for her and thus any question of process was waived. In this connection, appellant argues that her attorney was compelled by the court to enter a general appearance in order to object to the jurisdiction of the court. The statement of proceedings and evidence does not support this contention. There is included in the record an affidavit of appellant‘s counsel on this subject, but we must decide the case on the official record and not on statements of counsel.
Finally, claim is made that the Juvenile Court lacked jurisdiction because the children were nonresidents of the District of Columbia. The record does not disclose their residence, but, wherever their legal residence was, they were in the District and subject to the jurisdiction of the court.4
Affirmed.
QUINN, Associate Judge (dissenting).
The express language of the statute requires that “* * * The court shall hear and determine all cases of children without a jury unless a jury be demanded by the child, his parent, or guardian or the court.” There is no question that such demand was seasonably made by appellant and refused by the trial judge. I feel that this refusal was reversible error.
Congress provided that a jury trial shall be had in these cases if it was demanded. However, it must be noted that Congress did not stop there but explicitly went on to give the parent or guardian or court, as well as the child, the right to make such demand. I feel that the use of the words “or the court” is significant in showing that Congress intended that a right to jury trial be created by the statute. When a right exists in various parties, in a case, one may assert that right if the others fail to assert it. By giving the court this power to demand a jury trial, the court is put in a position of being a protector of that right and when it feels that a situation warrants a jury trial it may order it, even though the parties to the case have either failed or refused to exercise their power to assert this right.
The West Virginia Code, under its article on juvenile courts, provides for a jury trial in the following language: “In a proceeding under this article, an interested person may demand, or the judge of his own motion, may order a jury of twelve persons to try any question of fact.”1 I do not find any substantial variance between this statutory provision and the one under consideration. In interpreting this section the Supreme Court of Appeals of West Virginia held that the refusal to grant a jury trial under this section was reversible error.2
Since this was a purely statutory proceeding, the Juvenile Court was bound to give a strict construction to that section of the statute and any attempt by that court or this court to deny the appellant a trial by jury is judicial legislation and not interpretation. I cannot say that a statute does not mean precisely what it says, in the absence of any ambiguities.
In discussing the interpretation of clear and unambiguous statutes Sutherland in
No. 1167.
Municipal Court of Appeals District of Columbia.
Argued Jan. 14, 1952. Decided Feb. 8, 1952.
Ben Lindas, Washington, D. C., (Joseph H. Schneider, Washington, D. C., on the brief), for appellant.
Earl J. Lombard, Washington, D. C., for appellee.
Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.
CAYTON, Chief Judge.
A broker sued and recovered judgment for a commission on the sale of a rooming house business. Defendant owner has appealed.
Appellant Harris owned a building in which he operated a rooming house business. Desiring to sell the business he gave a written listing agreement to the broker