Rodgers v. Price

105 Ga. 67 | Ga. | 1898

Lewis, J.

The solution of the question raised by the assignment of error in this record depends upon what construction. should bé.given the word “ court ” as used in section 4793 of the Civil Code. ' Sometimes this word, as applied to a particular branch of the judiciary, is used in its comprehensive sense, and embraces all the official machinery of a particular court, including judge and jury, if a jury should be one of its tribunals in .determining issues; But we have never known the word applied so as to designate’ a jury alone. Where the term is used in the statute that is intended to designate what official shall determine and pass upon certain issues in the court, it invariably means the presiding judge. Whenever it is the legislative intent that the issues in any proceeding should be submitted to a jury, the word “ jury ” is used, and not “ court.” In the latter part of the section cited it is stated, “the 'court shall order a sale of such lands,” etc. Evidently this applies 'to the judge, for no one ever heard of a jury ordering a sale óf-property. - We can see no reason for giving the same word one meaning in the first part of the section and an entirely different one' in the last. This view is strengthened by the provisions- of; section 4791 which declares when an issue shall be made up' and tried by a jury. The word jury is there used, and not' court. ' .Where objections are filed to the right of an applicant for partition, showing by way of defense any matter in bar of the partition asked for,-or that the applicant is not entitled to so much of the. land as is .awarded to him, or to any part thereof, then this presents the issue for a jury trial; but, under section 4793, when the only issue, as in this case, is whether a fair and equitable division of the land can be had by metes and bounds, this issue must be determined by the court, that is, by the judge, and if it shall appear to'him that such a division can not be had, then he shall order a sale of the lands.

The question of the constitutionality, of this provision in- the act is not directly made by this record. The plaintiff in error seems to claim the right of trial by jury under the statute without calling directly in question the validity of the statute on account of it depriving him of the right of trial by jury. We do not think, however, there is any trouble on this score, under previous adjudications of this court upon the subject of this important right of a litigant. The effect of these ruling's is not to extend the right beyond the limits as it existed prior to the adoption of the constitution. As stated by Justice Atkinson in Stewart v. Sholl, 99 Ga. 537, “ The limitations upon this right are to be found in the common law, and except only in so far as it has been modified bj^ the constitution, it remains of force in this State to the same extent only as it existed at common law.” No such right existed at common law in equitable proceedings. In Griffin v. Griffin, 33 Ga. 109, Lyon, J., said: “The proceedings under that act, for partition of lands, are in the nature of a proceeding at equity, in which the court has all the power and jurisdiction for hearing and determining the various matters in dispute between the parties,' in respect to their respective titles, and awarding .a partition, according as he shall find the parties entitled, as fully and completely as if it were a bill in chancery - for that purpose.” This is cited approvingly in Hamby v. Calhoun, 83 Ga. 317. It has been directly decided that in proceeding's to partition land there exiáts no constitutional right of trial by jury. Flaherty v. McCormick, 113 Ill. 538; Pillow v. Improvement Co., 92 Va. 144. The right of trial by jury on this particular issue seems never to have existed in Georgia. Under the provincial act of March 26, 1767, Watkins’s Digest, 315, which provides for a partition of lands and tenements held in coparcenary, joint tenancy and tenancy in common, not a word is said about a jury trial, not even when title to the property is involved in the partition proceedings, and manifestly no such right existed under the act. So it appears that when the first constitution of the State was adopted, no right of trial by jury in such cases existed at all; and when the •present constitution of the State was adopted, no such right existed by statute for a jury trial on the particular issue involved rin this case. Section 4793 of the Civil Code is simply a codification of the act of December 26, 1837 (Cobb’s Dig. 583-4). ' The original act makes it still clearer that’ it was the purpose of 'the legislature to confer upon the judge the power of ordering 'a sale of lands, should it be made to appear to him that a fair "and equitable division -could not be had in kind; for it states ' that when either of the parties in interest shall, by his or her af- ' fidavit, or other proof, make it satisfactorily appear to the court ' that p. fair division can not be had by metes and bounds, then the court shall order a sale of the -lands and tenements. Such a thing as trying the issue before a jury by affidavits is unheard of in the practice. In any view then that we take of this case, we think the court did right in refusing to submit the issue to a jury. Judgment affirmed.

All the Justices concurring.