Act No. 143, Pub. Acts 1937 (Comp. Laws Supp. 1937, § 14444-21 et seq., Stat. Ann. 1939 Cum. Supp. § 27.1335 etseq.), relating to deficiency judgments in cases where the foreclosure of real estate mortgages is by advertisement, provides that the issue of whether the property was sold at substantially less than its true value shall be determined by the court without a jury.
It is sought to justify this provision of the statute because it relates to procedure, and methods of procedure are generally subject to legislative control.
Statutory changes in procedure denying the right of trial by jury are unwarranted and in conflict with the Constitution which provides "the right of trial by jury shall remain." Constitution of 1908, art. 2, § 13.
The right of trial by jury being constitutional, no substantial changes in its character can be made by the legislature. Underwood v. People, 32 Mich. 1 (20 Am. Rep. 633);Swart v. Kimball, 43 Mich. 443. *Page 451 Constitutional provisions similar to that of Michigan have uniformly been held to guarantee the continuance of the right as it existed at common law, or by statute, in the particular State at the time of the adoption of the Constitution. 35 C. J. p. 148, citing cases from 40 American jurisdictions.
The rule applies to cases of a similar character arising under statutes enacted subsequently to the adoption of the Constitution. 35 C. J. p. 149; Colon v. Lisk, 153 N.Y. 188 (47 N.E. 302, 60 Am. St. Rep. 609); White v. White, 108 Texas, 570 (196 S.W. 508, L.R.A. 1918 A, 339); Plimpton v. Town ofSomerset, 33 Vt. 283; Tabor v. Cook, 15 Mich. 322; Risser v.Hoyt, 53 Mich. 185.
In Tabor v. Cook, supra, a bill in equity was filed to quiet title to lands in possession of defendant by plaintiff who had purchased the same at tax sale. It was said:
"It is not in the power of the legislature, under our present Constitution, to provide for the trial of titles to land in equity, in the cases which were triable at law at the time the Constitution was adopted, unless it shall first make provision for having the case tried by jury if the defendant shall so elect. The Constitution [of 1850] (art. 6, § 27) says that 'the right of trial by jury shall remain; but shall be deemed to be waived in all civil cases, unless demanded by one of the parties, in such manner as shall be prescribed by law.' The intention here is plain, to preserve to parties the right to have their controversies tried by jury, in all cases where the right then existed (Work v. State, 2 Ohio St. 296 [59 Am. Dec. 671]; Norval v. Rice,2 Wis. 17, 22; Exline v. Smith, 5 Cal. 112; Hughes v. Hughes, 4 T. B. Monr. [17 Ky.] 43); and suitors cannot constitutionally be deprived of this right except where, in civil cases, they voluntarily waive it by failing to demand it in some mode which the legislature shall prescribe. *Page 452
"The present is one of those cases where a right to a trial by jury existed when the Constitution was formed, and this right must, therefore, 'remain.' "
In Risser v. Hoyt, 53 Mich. 185, it was said:
"It was against the enactment of new laws which ignored the proceedings according to the course of the common law, and provided summary methods of determining legal rights, that the protecting shield of the Constitution was required. The true criterion is, does the act destroy or materially impair the right of trial by jury according to the course of the common law, in cases proper for the cognizance of a jury? The nature of the controversy between the parties, and its fitness to be tried by a jury according to the rules of the common law, and not the nature of the tribunal, nor the summary mode of proceeding therein, should decide the question."
1. There is no doubt of the fitness of the issue in this case to be tried by a jury.
2. Prior to the enactment of this statute, the mortgagee, or his assigns, had a right, under the statutes in force at the time of the adoption of the Constitution, to trial by jury of the question of liability of the mortgagor for deficiency arising from the sale of mortgaged premises by advertisement.
3. Having a right of trial by jury of the issue of the mortgagor's liability at the time the Constitution was adopted, such right of trial by jury may not be abrogated by subsequent legislative enactment but "the right of trial by jury shall remain."
I think the statute in question insofar as it prohibits a jury trial of the prescribed issue is unconstitutional and void, and the judgment is reversed.
SHARPE, J., concurred with POTTER, J.
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