88 P. 416 | Idaho | 1907
Lead Opinion
This appeal involves but one question. It seems that plaintiffs commenced their action in the district court of Kootenai county to recover from the defendants the sum of $954.75, balance due on a certain alleged contract by which defendants agreed to furnish plaintiffs certain logs to be delivered either at the mouth of the St. Joe river or at the village of Harrison, on or before the first day of April, 1905.
After denying all the allegations of the complaint, excepting the contract to furnish the logs at the time and place specified in the complaint, and the copartnership of plaintiffs in the logging business as stated, as well as the copartnership of defendants in the same business as stated, the defendants further answering, and by cross-complaint aver that plaintiffs are indebted to defendants in the sum of $401.06 on a balance of account for logs furnished and for driving logs for plaintiffs. This cross-complaint is denied by plaintiffs.
After the pleadings were thus framed the ease was regularly called for trial. A jury was impaneled and sworn to
The first expression we find in the California reports bearing on the subject under discussion was in January, 1852. (Smith v. Pollock, 2 Cal. 92.) Mr. Justice Murray, speaking for the court, said: “The language of the constitution is explicit, and it is evident the framers of that instrument intended to give the benefit of the trial by jury in every cause.” Also the same volume, page 245, in Russell v. Elliott. In Cahoon v. Levy, 5 Cal. 294, it is again held that in all cases at law the right to trial by jury can be insisted upon and enforced. We next find the same doctrine expressed in Grim v. Norris, 19 Cal. 140, 79 Am. Dec. 206. This decision was rendered in 1861. Mr. Justice Cope delivered the opinion. We quote from the opinion: “The ground of the reference was that a trial of the case should require the examination of a long account, and the court acted, no doubt, on the supposition that the statute afforded the requisite authority for the order. But the constitution provides that ‘the right of trial by jury shall be secured to all, and remain inviolate forever,’ and if such a construction of the statute could be maintained, we do not see why this right might not be entirely swept away by legislative enactment. The framers of the constitution regarded the right of the citizen in this respect as too sacred and valuable to be intrusted to the guardianship of the legislature, and the provision referred to was intended as a restriction upon legislative authority.”
It will be seen that the court of last resort of California had repeatedly construed this section 639 at the time our territorial legislature enacted section 184 of chapter 6 in 1863-64 and section 4415 of the Revised Statutes of 1887; hence under the rule, when we adopted the section, the inter
In 79 Am. Dec. 207, the author discusses the subject under consideration, and has cited the authorities bearing on the question. Respondent in his brief has also cited authorities holding that under a statute and constitution similar to ours the court is authorized to appoint a referee on its own motion. After reviewing all the authorities cited, we are inclined to the opinion that the rule laid down in California, Minnesota and Nebraska, and a number of other states, comes nearer reaching the right of the litigant as guaranteed by the constitution of the United States than the line of authorities taking the opposite view. We are not'unmindful of the fact that numerous eases are before the courts wherein a referee is almost a necessity, and as said by counsel for respondent in his brief, “From the great inconvenience that might arise by submitting long and complicated accounts to jurors who are not accountants and -whose results at best would be unreliable, it seems to us that it would be manifestly unjust to compel a party to submit such complications to a jury, and dis
Concurrence Opinion
Concurring. — I concur in the conclusion reached. The guaranty found in section 7, article 1 of the constitution of Idaho, to the effect that the right of trial by jury shall remain inviolate, was not intended to' extend the right of trial by jury, but simply to secure that right as it existed at the date of the adoption of the constitution, and has no reference to suits in equity. (Christensen v. Hollingsworth, 6 Idaho, 87, 96 Am. St. Rep. 256, 53 Pac. 211.) As bearing on the question of the right to trial by jury of questions of fact in certain proceedings, see Nelson v. Steele, Judge, ante, p. 762, 88 Pac. 95, decided at this term of our court.