No. 2319 | Nev. | Jul 15, 1919
Lead Opinion
By the Court,
This is an original proceeding in certiorari, growing out of the following facts:
Bill Margeas brought an action in the justice’s court of Ely Township No. 1, White Pine County, Nevada, against Anthony Jurich, to recover the sum of $100. Anthony Jurich, who is an attorney at law, answered in proper person, and, in addition to resisting the demand of the complaint, set up a counter-claim for $55. The j ustice of the peace rendered j udgment for costs in favor of Jurich, but denied recovery on his alleged counterclaim. Margeas appealed to the district court, where Jurich demanded a jury trial. On September 8, 1917, the cause was set for trial on October 16, 1917, at which time a regular jury panel was to be in attendance. On September 18, 1917, Jurich and one of the firm of attorneys for Margeas being present in court in connection with other matters, the following proceedings were had in connection with the case of Margeas v. Jurich:
“Mr. Quayle (attorney for Margeas) — I wish to ask with reference to the case of Bill Margeas against
“Mr. Jurich — The case has been set regularly before the regular jury, and I insist on it being tried in the regular way.
“The Court — Well, he has been drafted and he is going to answer the call of his country, and he has a right to have this civil business disposed of. I will set it for next Wednesday morning for a special venire at 10 o’clock, September 24.
“Mr. Jurich — Let the record show that I object to the court resetting the case, and having demanded a jury trial and the case having been set in the regular way that I want to try the case before the regular jury; and at this time I do not consent, but object, to the special venire.
“The Court — The objection will be ovexruled and the venire will be issued.
“Mr. Jurich — Take an exception.”
The case was tried before the district court with a jury on September 24, 1917, and at the conclusion of the testimony counsel for Margeas moved the court to direct the jury to find a verdict in favor of the plaintiff for $95. Upon the conclusion of the argument the court granted the motion, and the defendant excepted. The jury were then recalled into the jury box, whereupon the court stated:
“Gentlemen of the jury, during the recess of the court a motion was made by the plaintiff for a directed verdict, and the court has the power and control over the verdicts in civil cases. That motion is granted, and you are instructed to bring in the following verdict:*145 ‘We, the jury duly sworn and impaneled to try the issues in this case, find for the plaintiff in the sum of $95. Dated September 24, 1917.’ Have your foreman sign that and return it into court.”
Mr. Jurich excepted to the instruction and the verdict, on the ground and for the reason that under the law and the evidence in the case the court had no such power.
“The Court — You may raise that by motion to set aside the verdict..
“Mr. Jurich — Well, at this time I ask the court for my right under the constitution to argue this case to the jury.
“The Court — It will be denied.
“Mr. Jurich — Take an exception to that. Then I ask the court at this time to give the case to the jury to decide.
“The Court — I have overruled that already, so that it will be the same ruling.
“Mr. Jurich — Take an exception.”
Thereupon the officers were sworn and took charge of the jury, who retired to deliberate on their verdict. Thereafter the jury returned into court.
“The Court — Gentlemen, have you the verdict that I handed you signed by your foreman ?
“Foreman — Your honor, the jury wishes to know if it is compulsory on their part to render their verdict, or can they make another verdict?
“The Court — No, you have to render the verdict the court instructs you under instructions;- you have to follow the instructions.
“Mr. Jurich — I take an exception to the court instructing the jury.
“The Court — The exception may be noted. You may retire again and return signed that verdict that I have directed.”
Thereupon the jury again retired to deliberate, thereafter returning into court.
“The Court — Have you a verdict, gentlemen of the jury?
*146 “Foreman — Yes, sir.
“The Court — The clerk may read the verdict.”
The verdict as read was in the words and figures as that directed by the court. Thereupon, at the request of defendant, the clerk polled the jury on said verdict, eleven jurors answering that the foregoing was their verdict, and one juror answering no, that it was not his verdict.
“Mr. Jurich — I would like thirty days’ stay.
“The Court — I will give you thirty days. Gentlemen, you will be excused from any further deliberation of the case.”
Judgment was entered on the verdict rendered. Subsequently, defendant, having no remedy by appeal, filed in this court his petition for a writ of certiorari, claiming that the respondent exceeded his jurisdiction and refused to regularly pursue his authority. The writ was issued, and in response thereto the record is now before this court for review.
Respondent, in addition to his answer and return, has moved to quash and dismiss the writ, on the ground that the petition does not state facts sufficient to warrant its issuance. By stipulation both the motion to quash and the hearing on the merits are to be considered together and the case submitted on briefs.
The relator contends that the district court exceeded its jurisdiction in three particulars: (1) In resetting the case for trial; (2) in ordering a special venire; (3) in directing a verdict for plaintiff. These will be discussed in their order.
For the benefit of future cases we deem it essential to announce that there is no such thing in this state as a “special venire,” and that the statute (Rev. Laws, 4940), which in explicit and unconditional terms provides:
“ * * * And it shall at all times be in the discretion of the court, with the consent of all parties litigant to the action or actions to be tried thereby, either to draw*148 the names of the jurors from the box, as in this act provided; or to issue an open venire directed to the sheriff, requiring him to summon * * * ” —is mandatory.
The court had neither jurisdiction, power, nor authority to order an open venire to try the case without the consent of the defendant, notwithstanding the exigency of the plaintiff’s situation. To hold otherwise would defeat the purpose of the statute and operate to deprive a litigant of the benefit of a trial of his cause before a regular panel of jurors. This may not be done without his consent.
But the argument is earnestly advanced that as the case is nonappealable this court will review the evidence to determine whether the directed verdict should be sustained. The fact that the case is nonappealable is convincingly answered by Chief Justice Hawley in the case of Phillips v. Welch, 12 Nev. 175. This case also holds that the hardship of the case, even if conceded to exist, cannot be considered, and quotes in this connec
“Where the law is clear, this argument can be of no avail. * * * Wherever power is lodged, it may be abused. But this forms no solid objection against its exercise. Confidence must be reposed somewhere; and if there should be an abuse, it will be a public grievance, for which a remedy may be applied by the legislature, and is not to be devised by courts of justice.”
The cases of Radovich v. W. U. Tel. Co., 36 Nev. 344, 135 Pac. 920, 136 P. 704" court="Wash." date_filed="1913-12-04" href="https://app.midpage.ai/document/adams-v-simpson-4732871?utm_source=webapp" opinion_id="4732871">136 Pac. 704, Floyd v. District Court, 36 Nev. 349" court="Nev." date_filed="1913-10-15" href="https://app.midpage.ai/document/floyd-v-district-court-of-the-sixth-judicial-district-8041994?utm_source=webapp" opinion_id="8041994">36 Nev. 349, 135 Pac. 922, Wong Kee v. Lillis, 37 Nev. 5" court="Nev." date_filed="1914-01-15" href="https://app.midpage.ai/document/wong-kee-v-lillis-8042035?utm_source=webapp" opinion_id="8042035">37 Nev. 5, 138 Pac. 900, are cited by the relator in support of the proposition that this court, on certiorari in a nonappealable case, will examine and weigh the evidence to determine whether a ruling on an essential question of law that goes to the right of the defendant to maintain his defense is sustainable from the evidence. While certain sweeping expressions are found in the reasoning of those .cases that open the door to such argument, we do not think any one of the cases goes to the extent as contended for by the relator. The irregularities discussed and ruled upon in those cases showed an obvious departure from some prescribed rule of procedure, and consisted of the omission on the part of the trial judge to do something that was necessary for the orderly conduct of the case, or doing it at an unreasonable time and in an improper manner. But here we are asked to review and weigh evidence, not to determine whether the court departed from some express rule 'of procedure or exceeded its jurisdiction, but to say that the court committed palpable error and a moral wrong in arbitrarily directing a verdict against the relator. This cannot be done in a proceeding of this character.
' , It is earnestly insisted that as the issue was one purely of fact the effect of the directed verdict deprived the relator of his statutory and fundamental right to have that issue tried before a jury. The authorities do not
The motion to quash the writ must be sustained, and the proceeding dismissed.
It is so ordered.
Rehearing
On Petition for Rehearing
Rehearing denied.