Martin v. King, 72 Ala. 354

Martin v. King

72 Ala. 354 | Ala. | 1882

SOMERVILLE, J.

The right of trial by jury is a constitutional one, secured by the fundamental law in all cases, civil as well as criminal. — Const. 1875, Art. I, § 12. It is a right, however, in the nature of a privilege, and may be waived in certain cases authorized by law. The statutes of this State provide, that “ an issue of fact in a civil case, in a court of common-law jurisdiction, may be tried and determined by the cov/rt, without the intervention of the jury, whenever the parties, or their attorneys of record, file a stipulation in writing with the clerk of the court, waiving a jury.” — Code of 1876, 3029.

Upon the first trial of this cause, in the court below, the attorneys entered into such a written stipulation, and the trial had was accordingly without the intervention of a jury. The only plaintiff to the suit, at that time, was Mary Ann King, one of the present appellees. Upon reversal of the cause in this court, her husband, Henry W. King, was joined as co-*359plaintiff with her upon the second trial. The question is, whether the defendants in the second i/rial are bound by the agreement to waive a jury, entered into upon the first trial. It is our judgment, that they are not concluded by such waiver. The agreement, being one in abrogation of a valuable constitutional privilege,.must, for this reason, be strictly construed. It would require a most liberal and enlarged construction, to extend its operation beyond the particular trial apparently contemplated by it. It may be that litigants would be willing for the particular judge who presides at one trial to act as both judge and jury, and be. entirely unwilling to risk his successor who might sit in judgment upon their rights at a subsequent trial. The parties to the suit, moreover, are not identical with those to the agreement. The first suit was one by the wife alone. The second, or present suit, has by amendment become one by both the husband and wife. The new party introduced is certainly not bound by it; and being without reciprocity, it would be inequitable to construe it to be only unilaterally obligatory. It required, in our opinion, a new agreement to debar the appellants of their right of trial by jury, and the court erred in not so ruling.—Benbow v. Robbins, 63 N. C. 422.

It is objected, that the transcript of the proceedings of the Louisiana court was improperly admitted in evidence, because of certain appearances indicating the alteration in two parts of the record of the date of the testator’s will, changing it from November' 18th, 1875, to the same date in 1875. It is true that, if an instrument, or record, presents the appearance of' having been altered, and any ground of suspicion is presented,, either by an inspection of it, or by extrinsic evidence, the party proposing to offer it in evidence is required first to remove-the suspicion, by accounting for the alteration. But, where-the alteration bears no such ear-mark of fraudulent intent, it will be presumed to have been made contemporaneously with the execution of the instrument, or the making of the record. Such, at least, seems to be the better doctrine, being based upon the more charitable maxim, that the law never presumes a fraud.—1 Greenl. Ev. § 564; Crabtree v. Clark, 7 Shep. 337 Bailey v. Taylor, 11 Conn. 531.

The correction of the date of the will in question presents-no semblance of wrongful intent. So far from being suspicious in its nature, it but renders the record the more harmonious in its various parts, and rescues it from the imputation of both inconsistency and absurdity. ■ When the cause was last before us, we observed, on an objection taken to a misdescription in the date of the will, as follows: “The pleadings all clearly show the purpose of the suit. The will is set out in hcec verba, and is described as dated November 18, 1873. The *360subsequent misdescription, in the judgment of the court, of the yea/r in which the will was executed, stating it to be 1875, instead of 1873, is a clerical error manifest on the face of the proceedings, and is rendered more plain and certain, if possible, by the established fact, apparent from the record, that the testator died prior to the year 1875.”—King v. Martin, 67 Ala. 181. As we then said, such a record may be said to correct itself, and we so construe it.

It is not denied that the proceeding in Louisiana, by which the will of the decedent, John Martin, was probated, was a proceeding in the nature of one in rem,: yet it is insisted that the petition to revoke the probate was a suit inter partes, because the appellants had come into possession of property under the will. A judgment in rem has, among many other definitions, been said to be, “an adjudication upon the status of some particular subject-matter, by a tribunal having competent authority for that purpose; ” or, in other words, “ a solemn declaration proceeding from an accredited quarter, concerning the status of the thing adjudicated upon, which very declaration operates accordingly upon the stafois of the thing adjudicated upon, and, ipso facto, renders it such as it is thereby declared to be.” — 2 Smith’s Lead. Cases, pp. 585-6; Freeman •Judg. § 606. In such cases, the only practicable service as to non-residents must be constructive notice, the whole doctrine •of which is the creature of necessity. Without its aid, the .arm of every court would be paralyzed in its efforts to do justice, by the simple election of litigants to evade its process by becoming fugitives from its territorial jurisdiction. There is nothing unreasonable in the view, that one who acquires property under the terms of a probated will, takes it subject to the .right of the court,, which established its probate, likewise to •revoke it, if adjudged to be founded in error, fraud or mistake. 'The status of the res, in such event, must necessarily be determined by the local jurisdiction which had authority over the ■subject-matter. The court in Louisiana possessed the same authority to revoke the probate of the will, as to establish it. Constructive service was all that could be given, in view of the non-residence of the defendants in the proceeding. If the forum rei sitos proceeded according to its own laws governing such notice, it is all that we can require. This seems to have been •done in the appointment of a curator ad hoc, to appear and represent the interests of the non-resident litigants, according to the practice of the civil law, which is a substitute, as we take it, for our method of publication.—Cooley’s Const. Lim. 499-500; Freeman on Judg. §§ 606, 607, 608, 612; 2 Brick. Dig. 159, §§ 38, et seq.; Kumpe v. Coons, 63 Ala. 448.

For the error of the Circuit Court in refusing the appellant’s *361demand for a jury trial, the judgment must be reversed, and the cause remanded, although in other respects its rulings are, in our opinion, entirely free from error.