Smith v. Kunert

Fisk, J. This appeal.is from a judgment of the district court of Foster county, and comes to this court for review of 'alleged errors of law. A so-called' statement of case was settled, embracing 34 specifications of error, and appellant’s counsel have assigned 30 of such alleged errors in their printed brief upon which they rely for a reversal of the judgment. The practice pursued by appellant’s counsel in the preparation of the statement of the case discloses a most flagrant violation of the statute and rules of this court governing the same. The case was tried before a referee, and the statement of case contains a literal transcript of the testimony taken and reported to the district court, without any attempt to condense or eliminate immaterial matter. That such procedure is not permissible, and that such a document does not constitute a statement of the case, in an action such as this, clearly appears from a reading of section 7058, Rev. Codes 1905, and rule 7 of this court. See opinions of Wallin, J., in Thuet v. Strong, 7 N. D. 565, 75 N. W. 922, and McTavish v. G. N. Ry. Co., 8 N. D. 94, 76 N. W. 985. The so-called specifications of error, numbered 24 to 29 inclusive, are also clearly insufficient under the statute and rule above mentioned, for the reason that no attempt is made to point out wherein the evidence was insufficient to support the findings complained of. Jackson v. Ellerson, 15 N. D. 533, 108 N. W. 241. We deem it unnecessary to add anything to what was said in -the previous opinions of this court m said cases. The requirements, both of the state and of the ■rule aforesaid, are plain, and must :be observed. For the foregoing reasons we decline to notice any of appellant’s assignments of error based upon rulings and findings made by the referee, and will dis [123] pose of those relating merely to the validity of the order of the district court in referring the issues to a referee. Appellant’s counsel contend, first, that the issues were such that appellant had a constitutional right to a jury trial in the absence of an express waiver thereof; and, second, that the case is not one involving the examination of a long account upon either side, within the meaning of our statute, and hence that the order of reference was in any event improvidently issued. The provisions of our code relating to the power of courts to order references are contained in sections 7046 and 7047, Rev. Codes 1905, and, so far as material to the questions here involved, are as follows: “Sec. 7046. All or any of the issues in an action whether of fact or law, or both, may be referred by the court or judge thereof upon the written consent of the parties. “Sec. 7047. When the parties do not consent to the reference, the court may, upon the application of either party, or of its own motion, direct a reference in the following cases: (1) When the trial of an issue of fact will require the examination of a long account on either side, in which case the referee may be directed to hear and decide the whole issue or to report upon any specific question of fact therein. * * *” It is apparent, from the language of these sections above quoted, that without the written consent of the parties, and none appears in this case, a court is powerless to order a reference, except pursuant to the provisions of section 7047. Mere silence or failure to object or except to the order will not constitute a waiver of a party’s constitutional right to a trial by jury. Township of Noble v. Aasen, 10 N. D. 264, 86 N. W. 742; Hanson v. Carlblom, 13 N. D. 361, 100 N. W. 1084. By what we have above stated we do not wish to be understood as holding that a party may not by his conduct become estopped to challenge the validity of such an order; but we hold that, under the facts appearing in the record in this case, the order must be sustained, if at all, upon the ground that the trial required the examination of a long account, and this brings us to a consideration of appellant’s first contention, which is, in effect, that subdivision 1 of section 7047, in so far as it authorizes compulsory references in actions such as this, is in conflict with section 7 of our state constitution, which provides that “the right to trial by jury shall be secured to all and remain inviolate.” [124] We think there is .no merit in this contention. The meaning of this important provision contained in our organic law was authoritatively, and no doubt correctly, settled by this court in Barry v. Truax, 13 N. D. 131, 99 N. W. 769, 65 L. R. A. 762, 112 Am. St. Rep. 662. In an exhaustive opinion upon the subject, by Young, C. J., reviewing and citing numerous authorities, the conclusion was reached that the framers of the constitution intended by the adoption of said provision to preserve and perpetuate the right of trial by jury as it existed by law at and prior to the adoption of the constitution. We quote in part as follows: "The constitution refers to ‘the right of trial by jury’ as a right well known and commonly understood at the time of its adoption, and it is the right so understood which is secured by it. * * * It is entirely clear, therefore, that the right of trial by'jury, which is secured by the constitution, is the right of trial by jury with which the people who adopted it were familiar, and that was the right which had obtained a fixed meaning in the criminal jurisprudence of the territory, as defined by the statutes which existed prior to and at the time of the adoption of the constitution.” At the time the constitution was adopted, and for some time prior thereto, a territorial statute (chapter 112, p. 151, laws 1889) was in force authorizing compulsory references in actions the trial of which involved examination of. a long account upon either side, and we think it plain that the practice as thus established was not intended to be interfered with by the adoption of the constitutional provision aforesaid. This territorial statute has been continued in force ever, since statehood, and is now embraced in section 7047, Rev. Codes 1905, and during all this time no attack upon its constitutionality, other than the present one, has been made in the courts of this state so far as we are aware, and the same has therefore become firmly settled as a rule of practice in our courts. In the light of these facts we would feel very reluctant to declare the same unconstitutional in any event; but, as before stated, we are convinced that section 7 of our constitution should be construed in the i ight of the existing practice as established by law at the time of its adoption, and, as thus construed, the statute in question is constitutional. Appellant’s counsel have called to our attention numerous authorities from other states holding similar statutes void under constitutional provisions very similar to section 7 of our constitution; but in most, if'not all, of these cases it will be found upon examination that the statute in question was not in force at the time [125] of the adoption of the constitution, but was enacted subsequently, and hence these decisions are not in point. As sustaining our views, see, also, 17 Enc. Pl. & Pr. 94, and cases cited; Tinsley v. Kemery, 170 Mo. 310, 70 S. W. 691; Salem Traction Co. v. Anson, 41 Or. 562, 67 Pac. 1015, 69 Pac. 675, and1 Board of Supervisors of Dane County v. Dunning, 20 Wis. 210, and cases cited. But counsel for appellant contend that, even though the statute aforesaid be held constitutional, still the order of reference must be held to have been improperly made, for the reason, as claimed, that the trial of the issues of the case at bar did not require the examination of a long account, or any account, upon either side, within the meaning of the statute, and further, that the question as to whether the issues were properly referable must be determined by the character of the plaintiff’s claim, and not by the issue made upon it, nor by the nature of the defendant’s answer. In this we think counsel are clearly in error. If there ever was a case the trial of which required the examination of a long account on either side, this is certainly such a case, as a mere cursory examination of the pleadings will disclose. The issues framed by the pleadings are very numerous, involving many dealings between the parties growing out of farming transactions under a contract under which the plaintiff farmed certain lands for the defendant; also growing out of sales of personal property of various kinds and at various dates, and for work, labor, and services performed by plaintiff for defendant; also for numerous items or claims for money advanced to and paid out and expended at various dates by each party at the request of and for the benefit of the other. Numerous causes of action set forth in the complaint, as well as those set forth in various counterclaims contained in the answer, are all for the recovery of money upon the contract, and some of the causes of action embrace many separate items •of account, all of which are denied by the opposite party. Both the complaint and the answer clearly disclose upon their face a proper case for a reference and accounting between the parties. In fact, the issues are such as to render it practically impossible for a jury to intelligently try and determine the sam§. That the case was one eminently proper to be. referred is, we think, too plain for discussion. As supporting our view, see 17 Encyc. Pl. & Pr. 996 et seq. and numerous cases cited; Sutton v. Wegner, 74 Wis. 347, 43 N. W. 167; Turner v. Nachtsheim, 71 Wis. 16, 36 N. W. 637; La Coursier v. Russell, 82 Wis. 265, 52 N. W. 176; Chicago, etc., Ry. Co. v. Faist, [126] 87 Wis. 360, 58 N. W. 744; Ittner et al. v. St. Louis Exposition, 97 Mo. 561, 11 S. W. 58; People v. Peck et al., 57 How. Prac. 315; Spence v. Simis, 137 N. Y. 617, 33 N. E. 554; Salem Traction Co. v. Anson, 41 Or. 562, 67 Pac. 1015, 69 Pac. 675; Lewis v. Snook, 88 App. Div. 343, 84 N. Y. Supp. 634; Haig v. Boyle et al., 20 Misc. Rep. 155, 45 N. Y. Supp. 816. For the reasons above given, the judgment appealed from is affirmed. All concur.