State Ex Rel. Kennedy v. District Court of Fifth Judicial District

MR. JUSTICE GIBSON delivered the opinion of the court. The application before the court is for a writ of mandate to compel the respondent district court to draw-and require the attendance of a trial jury and to set for trial a certain action pending in said court wherein the relatrix is the plaintiff and Intermountain Transportation Company, a Montana corporation, is the defendant. The. action is for damages for injuries to and death of plaintiff’s testate, Chester A. Kennedy, caused by the alleged wrongful act or neglect of defendant. It was commenced November 21, 1945, in the district court of the second judicial district in and for Silver Bow county, but transferred, pursuant to motion for change of venue, to the respondent district court, where it has been at issue since August 19, 1946. The respondent district judge was disqualified in the cause *323 by the filing of an affidavit by plaintiff pursuant to subdivision 4, section 8868, Revised Codes of Montana, 1935, and Hon. Jeremiah J. Lynch, a judge of the second judicial district, was called in to sit and act in the cause and assumed jurisdiction thereof. This disqualification of a judge does “not apply to the arrangement of the calendar, the regulation of the order of business, * * * nor to the power of calling in another district judge to sit and act in such action.” Subdiv. 4, sec. 8868, supra. The judge disqualified still has the right to arrange the calendar and set the cases for trial. If otherwise this application for mandate should have been brought against Judge Lynch. In August 1947 plaintiff’s counsel, by letter to the respondent judge, Hon. Lyman H. Bennett, asked him to call a trial jury and set the action for trial. Accompanying this letter was a formal petition and request to the court to call a trial jury and set the cause, then at issue, for trial. A jury was not called, and the action was not set for trial; and on March 18th this proceeding was instituted to compel action. An alternative writ was issued, and the respondent court and judge by return thereto averred that the reason a jury had not been called and the cause set for trial was because of the failure of either of the parties to the action to comply with or observe Rule XXX of that court, which provides that no jury case shall be set for trial until after a pretrial conference thereon has been had. This court does not judicially know the rules of the district courts. Pincus v. Davis, 95 Mont. 375, 26 Pac. (2d) 986. But it is shown, by return of respondent, that at all the times material here there was in effect such Rule XXX of the court. The rule is made a part of the return and is as follows: “From and after the date upon which this rule shall become effective, no civil action within which any party thereto shall be otherwise entitled to demand a trial upon any issue of fact before or by a jury shall be set for trial before or by a jury until a conference is had pursuant to the provisions of Section *324 9327 of the Revised Codes of Montana, 1935, as amended by Chapter 61 of the Session Laws of the Twenty-sixth Legislative Assembly of the State of Montana (1939), and to the end that all such actions may be expeditiously disposed of, it is provided that whenever after issues are joined therein any party to any action falling within the purview of this rule shall desire a disposition of such action, he may file with the Clerk of the Court wherein such action may be pending a notice setting forth the title and number of the action with a request that said cause be set down for pre-trial conference upon all phases of said action which can be considered pursuant to the pre-trial Practice Act Amendment hereinbefore referred to. At the next session of the Court after the filing of such request, the Clerk of the Court wherein the request is filed shall present the same to the Court and the case shall be immediately set for such pre-trial conference at a date which, in the absence of agreement between the parties with the consent of the Court for an earlier date, shall not be less than two weeks from the date upon which the setting shall be made.” This rule is made pursuant to the authority of section 9327, Revised Codes of Montana, 1935, as amended by Chapter 61, Laws of 1939. The relatrix asserts the rule is not in conformity with the statute permitting its adoption. That portion of the statute pertinent to the issue reads: “In any action, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider: “ (1) The simplification of the issues; “(2) The necessity or desirability of amendments to the pleadings ; “ (3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof; ‘ ‘ (4) The limitation of the number of expert witnesses; « “(5) The advisability of a preliminary reference of issues *325 to a referee for findings to be used as evidence when the trial is to be by jury; “(6) Such other matters as may aid in the disposition of the action. “The court may make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial t.o those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pre-trial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to non-jury actions or extend it to all actions.” The quoted portion of the statute was enacted as an amendment to the section of the Code of which it is a part, in 1939. It is a copy of Rule 16 of the Federal Rules of Civil Procedure, 28 U. S. C. A. following section 723e, which became effective September 16, 1938. A perusal of the statute discloses that whether a pre-trial conference shall be held in any case is determined by the trial court. This discretion may be exercised either by directing the parties in the particular ease to appear before the court for such a conference, or by the adoption of a rule of court establishing a pre-trial calendar “on which actions may be placed for consideration,” and the actions so placed thereon may be confined to jury actions or to non-jury actions or the rule may provide that all actions shall be placed on such calendar. The rule here involved confines the cases to all civil actions in which any party thereto shall be “entitled to demand a trial upon any issue of fact before or by a jury.” The rule specifically provides that no such action “shall be set for trial before or by a jury until a conference is had pursuant to *326 the provisions of section 9327r Revised Codes of Montana, 1935, as amended by Chapter 61, Session Laws of 1939.” The rule places the burden upon the party to any action within its purview who desires a “disposition” thereof to file with the clerk of the court a request that the action be set down for pre-trial conference upon all phases of the cause that may be considered under the 1939 amendment to Code section 9327. If this rule of the respondent court is within the specific authority with which the court is vested by the amendment’ or if within its power and authority to make rules as set forth in section 8845, Revised Codes 1935, the instant application for writ of mandate must be denied. This, because the relatrix has not availed herself of the right to take the step which the rule requires as a precedent to the right to require the case .to be set down for trial by jury: It was argued at bar that the rule does not establish a pretrial calendar, and for that reason there is no requirement for a pre-trial conference before the case be set down for trial before a jury. True, the rule does not in express words make declaration that all jury cases shall be placed upon a pre-trial calendar; but such is clearly the purpose and effect of the rule. The use of the word “calendar” is not necessary. All cases, jury and non-jury, are on the “calendar” of the court. As used in referring to a court calendar, the quoted word denotes merely a list of cases to be tried. The designation of all jury cases as those to be considered at a pre-trial conference before setting same for trial seems sufficient to establish such calendar pursuant to the statute. Counsel for relatrix also aver that she, as plaintiff in the action, in response to a demand and motion therefor, furnished defendant in the action with a bill of particulars of certain matters alleged in her complaint so far as the information was available to her, and that therefore no reason exists for a pre-trial conference. But the pre-trial conference is not especially for the purpose of disclosure or discovery. *327 There is nothing in the statute providing that either party to an action may be required to make any disclosure at such a conference. In fact, even in the matters to be considered by such conference, the results sought, to simplify the issues, and to shorten and expedite the trial, are to be obtained through “admissions or agreement of counsel.” The use of the conference under the federal rules of civil procedure, may be more effective for the purposes sought, because there are in the federal rules provisions for disclosure and discovery by method of interrogatories, and requests for admission of the genuineness of documents and the like. It would appear that the rules providing means for discovery and to obtain disclosure, might be used in the federal courts in connection with pre-trial conference, in such manner as to make the pre-trial conference more effective than it compulsorily may be in the state courts. Counsel for relatrix also suggest that the permission, granted to the court by the statute, to require a pre-trial conference, and the establishment of the rule in question pursuant thereto, violate the Constitution. No provision of state or federal Constitution is cited to support such thought, however. "While the Constitution guarantees a jury trial in the cases to which it refers in the guaranty, the right is the right as it existed at the time of the adoption of the Constitution (Chessman v. Hale, 31 Mont. 577, 79 Pac. 254, 68 L. R. A. 410, 3 Ann. Cas. 1038) and is, of course, to be secured upon compliance with laws, reasonably calculated to enforce the guaranty in accordance with recognized principles of jurisprudence. The district court has the power to establish by rule a pretrial calendar. And it has the power to confine such calendar “to jury actions or to non-jury actions or extend it to all actions.” The rule of respondent court confines such calendar to jury actions. To make the rule effective it is within the power of the'court, of necessity implied from the power expressly granted, to provide that no jury case shall be set for *328 trial until pre-trial conference thereon is had. The rule of the district court, being within power, requires any party to an action wherein a jury trial may be demanded as of right, to file the notice and request for pre-trial conference, and the holding of such conference as a condition precedent to the right to have his cause set for trial. It is true that such conference may be of no avail. Neither party may desire such conference. They may not agree upon' any of the matters which the statute sets forth as subjects upon which to confer and concerning which there may be in the language of the Act the “possibility” of obtaining admissions or agreements of counsel. But, at least, the opportunity is given by such a meeting of counsel for agreement upon some of the matters outlined in the statute, with resultant narrowing and simplification of issues, and more speedy determination of controversies, at less expense to the litigants and the public. In the case of State ex rel. Carlin v. District Court, Mont., 164 Pac. (2d) 155, 157, the relator asked for writ of mandate against the same court to compel the calling of a jury and setting for trial an action pending before the court in Jefferson county. The same rule of court here involved was given some consideration in that case, although the rule had not been adopted when relator made demand that a jury be called and the case pending be set for trial. The rule was adopted after the application for mandate was made and alternative writ issued, and on the day of the adoption of the rule, September 19, 1945, a pre-trial conference was begun but continued to a later date and, apparently fruitless, was not completed. The court in the Carlin case said that the respondent judge “deems that in the exercise of a sound discretion he may, when desirable, dispose of issues of fact in civil actions by referring controverted issues of fact in the absence of agreement for trial by the court without a jury. ’ ’ That contention was hinted at by counsel for respondent in oral argument here, but not definitely advanced. We see nothr ing in the statute, or rule of court, that would permit, in *329 cases where trial by jury may be demanded as of right, controverted questions of fact to be determined by the court, or other tribunal than the jury. The conception of the pre-trial conference is comparatively new in our jurisprudence. The idea is old, however. In Matthew, 25th verse, Chapter 5, it is said: “Agree with thine adversary quickly, whilst thou art in the way with him; lest at any time the adversary deliver thee to the judge, and the judge deliver thee to the officer.” The conference puts one “in the way” with his adversary, and gives opportunity for agreement. The procedure has good potentialities, as is said by a writer in 25 Virginia Law Review 261, “if properly used by able and fearless judges dealing with fair-minded lawyers.” The writ sought goes only when the person seeking it is entitled to have the defendant perform a clear legal duty, and then only when there is no speedy or adequate remedy in the ordinary course of law. Raleigh v. First Judicial District Ct., 24 Mont. 306, 61 Pac. 991, 81 Am. St. Rep. 431; State ex rel. Peel v. District Ct., 59 Mont. 505, 197 Pac. 741. This clear legal duty is not shown here. Here, the rule of court is within the power of the court to establish, and its requirements are not unreasonable. A compliance therewith is preliminary to any compulsion upon the court to call the jury and set the case involved for trial. Therefore the alternative writ herein is set aside and held for naught, and the peremptory writ sought is denied. Mr. Chief Justice Adair and Associate Justices Choate and Metcalf concur.