28 S.D. 221 | S.D. | 1911
The sole question brought up for review is as to the right of the court to determine the issues involved and to render judgment
The case of Moody v. Found, supra, in principle, is precisely the same as the case at bar. In that case, as in the case at bar, the contest was initiated in the county court, and from an order, or judgment of the county court admitting the will to probate appeal was tálcen to the circuit court. On appeal to the Supreme Court of Illinois it was held that the state Constitution, providing that the right to trial by jury as heretofore enjoyed shall remain inviolate, does not confer on one contesting the probate of a will the right to demand a jury trial in the circuit court on an appeal from a judgment of the county court admitting the will to probate, that the same issues involved in the circuit court, on appeal were tried in the county court, and those issues on appeal are to be determined by the circuit court without a jury, the same as they were tried without a jury and before the court in the county court. In rendering the opinion the Illinois Supreme Court said: “The jurisdiction to admit wills to probate has never been exercised by the common-law courts as a part of their common-law jurisdiction, but, prior to the establishment of probate courts, the ecclesiastical courts of England, and the analogous courts of this country, exercised that jurisdiction, and that jurisdiction, as now exercised by the county court of this state, is purely statutory, so that the constitutional provision that ‘the right to trial by jury as heretofore enjoyed shall remain inviolate’ did not confer upon appellant the right to demand a jury upon the trial of said appeal in the circuit court, as it has been uniformly held that such constitutional provision was designed only to secure the right to trial by jury as it had heretofore been enjoyed in those tribunals which exercised common-law jurisdiction, and was not intended to confer such right in any class of cases where it had not formerly existed. Nor was it intended to introduce the jury system into these summary jurisdictions which were unknown to the common law.” The Illinois constitutional provision is similar in effect to
The only effect of the clause, “and shall extend to all cases at law without regard to the amount in controversy,” found in the Constitution of this state, was to extend the constitutional privilege of trial by jury to those cases of small amount not within the seventh amendment of the federal Constitution, and some state Constitutions; otherwise the constitutional provision of this state “that trial by jury shall remain inviolate” is substantially the same as in many other states, and applies to law cases triable by jury as a matter of right as theretofore existed in the territory of Dakota prior to the going into effect of the Constitution of this state. The “law cases” comprehended within this clause of our Constitution applied to all those cases which at common law or by the statute of the territory of Dakota were triable by a jury on the law side of the court. In re McClellan’s Estate, 20 S. D. 498, 107 N. W. 681. In re Welch’s Will, 69 Vt. 127, 37 Atl. 250, the court held probating and contest of a will was not within a similar constitutional provision and was not a case at law. The case of Cartwright v. Holcomb, 21 Okl. 548, 97 Pac. 385, is directly in point and holds that, on an appeal to the district court from a judgment of the probate court refusing to' admit a will to probate, the case was not one at law in which a jury trial was demandable as a matter of right. Hudson v. Hughan, 56 Kan. 152, 42 Pac. 701, is to the same effect.
In Schmidt v. Schmidt, supra, the Supreme Court of Minnesota, under precisely the same constitutional provision as exists in this state, said: “Section 4, art. 1, of the state Constitution, ordains that the right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy. The doctrine of this court has uniformly been that the effect of this constitutional provision is merely to continue, unimpaired and inviolate, the right to trial by jury a* it existed in the territory at the time of the adoption of the Constitution, that it neither added to nor took from that right, except that it was extended to all cases at law without regard to the amount in con
In this state there was not under the territorial law, neither is there at this time, a statute giving to either party to an action or proceeding contesting the right to probate a will the right to a jury trial as a matter of right. Section 359, Probate Code, under which this case was appealed from the county to the circuit court, provides that, when an appeal is on questions of fact, the trial in the circuit court must be de novo, and shall be conducted as if the case had lawfully originated in that court, and such appellate court has the same power to decide the questions of fact which the county court or judge had, and it may, in its discretion, as in suits in chancery, and with like effect, make an order for the trial by jury of any or all the material issues of fact between the parties. This section was part of the statute law of this state at the time of the adoption of our Constitution. Section 359 places the trial of all such appeal cases in the same class with chancery cases for the purposes of trial procedure. In re MeClellan’s Estate, 20 S. D. 498, 107 N. W. 681, this court held that on appeal to the circuit from the county court, from an order appointing an administrator, the right to trial by jury did not extend to such case. The provisions of section 359 are not in conflict with either the state or federal Constitutions relating to trial by jury as a matter of right. This court has heretofore held in Engle v. Yorks, 7 S. D. 254, 64 N. W. 132, that, when a jury is called in the circuit court in a case appealed from the county court, the verdict in such case is only advisory to the court, and that the court might adopt and use the verdict, or it might decline to do so and make findings of its own. The provision in section 359 that, in the circuit court, the case shall be tried de novo as if it had originated in that court, does not invest the circuit court with any new or additional jurisdiction not possessed by the county
Finding no error in the record, the judgment appealed from is affirmed.