Marlar v. State

62 Miss. 677 | Miss. | 1885

Arnold, J.,

delivered the opinion of the court.

There was no error in overruling the motion of the appellants for leave to file the special pleas set out in the record to the effect that Castlebery, as tax collector, was required by law to make monthly settlements, and in case he failed to do so it was the duty of certain officers named to make publication as to his default and have him removed from office, which was not done. The facts averred in these pleas constituted no defense to the action, and if there were no other reasons this was sufficient to vindicate the action of the court in refusing to allow them to be filed out of time.

Sections 1724 and 1725 of the code provide that “in all matters in which matters of account are in controversy the court may, on the application of either party, direct a reference to one or more competent persons, not exceeding three, as referees, to state and report an account between the parties and the amount that may be due from either party to the other, which report, when confirmed by the court, shall be final and conclusive between the parties, and judgment shall be entered thereon and execution issued, as in other cases; but either party may at the time of ordering such reference enter in the minutes of the court his dissent therefrom, and in the same term in which the report is filed may demand a trial by jury, in which case the cause shall be tried by a jury, as heretofore; * * * and upon such trial the report of the referees shall be primdfaoie evidence of all the matters therein found and reported; and at the time of demanding such trial by jury, the party shall file his exceptions to said report, and no other exceptions shall be considered on the trial.” * * * “ Either party who shall not demand a trial by jury may file exceptions to the report of the referees, and the court shall hear and determine the same and may set aside said report and direct another reference to the same or other referees.” * * * The right of trial by jury, when demanded, is carefully preserved by this statute. And when trial by jury is' waived, either party may except to the report of the referees, and the court is required to hear and determine the same. The statute does not prescribe at what time trial by jury shall be demanded, further than that it shall be in the same term at which the report is filed ; nor does it specify at what time exceptions -to the report shall be made, further than that if a jury is demanded the exceptions shall be filed at the time the demand is made. But it is not contemplated by the statute that the trial of a cause shall be extended by reason of such reference beyond the term to which the report is returned. The court has power to prevent delay in such cases and to facilitate the proper disposition of the canse, and should exercise its authority,' if requested, by designating some reasonable time during the term at which the report is filed within which exceptions to the report should be filed. But the discretion of the court in this respect was not invoked by either party. If the appellants did anything to waive or forfeit their rights under the statute or to delay or avoid trial in the mode provided by the statute it is not shown by the record. They complied literally with the terms of the statute. When the reference was ordered they objected and had their dissent made matter of record, and during the' same term at which the report was filed they demanded a trial by jury, and then and there offered to file exceptions to the report of the referee.

The suit involved “ matters of account,” and on the application made there was no error in referring the cause to have an account taken and stated between the parties, but it was error to confirm the report of the referee and to deny a trial by jury when demanded by the appellants.

Reversed.