Phillips v. Vessells

Harrington, J., delivering the opinion of the court: The sole question before us is whether an inquisition is a cause tried by jury within the meaning of Section 3684, Rev. Code 1915. That it in no sense partakes of a ciminal nature is necessarily conceded. Woolley on Del. Prac. vol. 1, § 239. The Century Dictionary defines cause as “a legal proceeding between adverse parties; a case for judicial decision.” A trial is also defined in the same work as “the judicial investigation and determination of the issues between parties; that part of a litigation which consists in the examination by the court of the point, the hearing of the evidence, if any, and the determination of the controversy or final submission of the cause for such determination.” The same thought is sometimes expressed by the statement that a trial is a “judicial examination of the issues whether of law or fact.” Eldridge v. Strenz, 39 N. Y. Super. Ct. 295, 300; Stewart v. State, 28 Ind. App. 378, 62 N. E. 1023; Words and Phrases, First Series, p. 7095, 38 Cyc. 1267. While the word “trial” is a noun, the word “tried,” though a verb, is used in the statute involved in this case (Section 3684) in the same sense. Inquest or inquisition is “in its broadest sense a term including any judicial inquiry but is more generally confined to an inquiry by jury” (22 Cyc. 1101), and it is used in the latter sense in Section 3729. While it is true that the verdict on an inquisition and the final judgment thereon must be against the defendant, the amount [492] of such verdict is for the jury to determine after hearing the evidence. The plaintiff in such a proceeding must also prove “his damages in the same manner and with the same regard to the rules of evidence as he would in proving damages before a jury that was trying the question of rights as w^ell as of damages,” alone. Woolley on Del. Prac. ml. 1, § 239. While the defendant in the judgment ordinarily does not participate in the hearing before the jury by the production of evidence or otherwise on the issue of damages, we know of no rule of law or procedure that would prevent his doing so. That an inquisition is a cause tried by jury and is therefore within the prohibition of Section 3684, Rev. Code 1915, seems clear. Haines v. Davis, 6 How. Pr. (N. Y.) 118. That being true, the present July term of court cannot be counted as the next term after the April term within the meaning of Section 3729, Rev. Code 1915, and the plaintiff will be within his rights if his damages are ascertained by an inquisition at bar at the October term of this court. While delays in judicial proceedings are always to be regretted, we are bound by the provisions of the statute, and the only remedy is by appropriate legislation. The application of the plaintiff that the amount of his judgment against the defendant be ascertained at this term by an inquisition at bar is, therefore, refused.