Southern Nat'l Bank v. Farmington Corp.

The opinion of the Court was delivered by Mr. Justice Fraser. Judge Prince made the following order: “On the call of the above stated cases for a hearing before me, the attorneys for the defendants suggested in writing that the Circuit Court was without jurisdiction to hear and determine any questions therein, except the question of jurisdiction, on account of the fact that the defendants had appealed from the orders of reference heretofore granted in said cases by Judge Frank B. Gary; the defendants alleging that such orders deprived them of a mode of trial provided for, in certain contingencies, in subdivision 6 of section 23 of the Code of Civil Procedure, 1912, and that an appeal from such orders acted as a stay or supersedeas, as to any further proceedings in said causes, until such appeals had been heard and finally determined by the Supreme Court. I have some doubt as to whether said orders of reference are appealable, but resolve such doubt in favor of the appellants, and hold that they are appealable. If such orders are appealable, and I hold that they are, then the appeals herein act as a stay and supersedeas upon any further proceedings in the Circuit Court until such appeals have been heard and finally determined by the Supreme Court. Pending the said appeals, this Court had no jurisdiction to hear or determine *478 any questions arising on the merits, or to determine any questions in said cases, except the question of jurisdiction at the present time and pending said appeals. It is, therefore, ordered and adjudged, that, pending said appeal to the Supreme Court in the two causes above stated, this Court is without jurisdiction to hear and determine any of the questions arising on the merits therein, as such appeals act as a stay and supersedeas upon any proceedings under said orders of reference subsequent to the filing of the return therein in the Supreme Court.” Geo. E. Prince, Presiding Judge, September 27, 1913. 1 These actions were for the foreclosure of mortgages, both real and chattel, an accounting was demanded, and it appeared on the face of the pleadings to be long and complicated. The plaintiff asked for an order of reference. The defendants objected and claimed the right to have the testimony taken in open Court and based the claim on subdivision 6 of section 23, Code of Civil Procedure, 1912, which reads as follows (in part) : “And in each of said counties, upon demand of either party, equity cases shall be tried in open Court, upon testimony then and there offered, the same to be taken down by the Court stenographer as a part of his official duty.” The counties referred to are the counties of the Sixth Circuit. Section 331, Code Civil Procedure, provides that a cause may be referred upon the application of either part}'- or on the Court’s own motion, where there is to be taken a long account. Section 23 is a special provision, section 331 is a general provision, and each apply here. The question is, which section shall govern? The Constitution, art. Ill, section 34, subdivision 9, provides, “In all cases, where a general law can be made applicable, no special law shall be enacted.” The legislature has itself decided that a general law can be made applicable, in terms that can not be successfully spoken against. It lias enacted a general law applica *479 ble to the case. The provision relied upon by the defendant is unconstitutional and \oid in so far as it seeks to ■exempt the counties of the Sixth Circuit from the operation of the general law. 2, 3 4 It may be said that the record does not show that the ■question of the constitutionality of the statute was raised in •the Circuit Court and it can not be raised here. It is perfectly true that a party to a suit may waive a constitutional right and may be deemed to have waived it by a failure to raise the question on Circuit. This ■’is, however, a public question and affects not only the parties to these particular suits, but every other litigant in the Circuit, and not only the other litigants in the Sixth Circuit, but the litigants in every other Circuit. It is to the interest ■of every part of the State that Courts shall proceed with all convenient speed to transact the legitimate business and close its session. In Code Civil Proc., section 331, the legislature recognized the fact that long accountings can be had more satisfactorily, more quickly and more cheaply before a master or referee and provides for the State. at large the more excellent method. This Court would not be performing its constitutional obligation if it allowed a ■constitutional provision to be defeated and the whole system of administration of law to be thrown into confusion because neither of the parties litigant chose to raise the question. It may be wise to allow each county to manage its own affairs in its own way. The wisdom of it is not for the Courts. The Constitution has forbidden it and that is enough. This Court has no right to say that a perfectly valid order was invalid because neither party chose to raise the question. If the law, the whole law (the Constitution and statutes) gave Judge Gary the right to refer the case to a referee, this Court can not say he had no such power. Judge Gary did have the right to refer the questions, and his order is affirmed. *480 5, 6 The order affected the mode of trial and was appealable and Judge Prince was also right in refusing to hear the cause while the appeal was pending, and his order is affirmed. Both appeals are dismissed and the cases are remanded to the Circuit Court for such proceedings as are necessary. Mr. Chief Justice Gary concurs in the result. Mr. Justice Watts concurs in the opinion of the Court. Footnotes [1] Footnote. — See Tisdale v. Scarborough, ante, 377, 83 S. E. 594, as to special legislation where a general law can be made applicable.