Williams v. Gottschalk

Mr. Justice Scott delivered the opinion of the court: The plaintiff in error questioned the jurisdiction of the municipal court, claiming that the justice of the peace, on November 30, 1906, continued the cause until December 14, 1906, not for the purpose of talcing evidence, and that thereby, jurisdiction of the case was lost. The cause was not continued to December 14. The justice continued the cause “to the municipal court of Chicago,” and made an order setting the. hearing for December 14, 1906. The jurisdiction of the justice by virtue of the provisions of the Municipal Court act ceased, for all purposes, with the expiration of the day preceding the first Monday of December, 1906, and on that Monday this cause was, by effect of the statute, transferred to the municipal court, where such proceedings could be had as though said suit had originally been brought in that court. (Municipal Court act, secs. 60, 61.) The justice was without power to continue the cause beyond the time when jurisdiction thereof would vest in the municipal court. His order continuing the case to the municipal court was, in effect, an order continuing it until such time as the cause would be transferred to that court by operation of law, to-wit, the first Monday in December, 1906. His order setting the case for a hearing on December 14, 1906, was a nullity. Plaintiff in error demanded a jury trial but declined to advance the sum of six dollars to be applied on the payment of the fees of the jurors, as required by the fifth subdivision of section 56 of the Municipal Court act. The court thereupon refused the demand for a jury, and that action of the court is assigned as error. The subdivision above referred to, as originally enacted, reads as follows: “In any case of the fourth class or of the fifth class mentioned in section two (2) of this act the defendant, at the time of his appearance, shall pay to the clerk in full for all services to be rendered by said clerk, if the suit be other than an action of forcible entry and detainer and the amount claimed by the plaintiff in money or property exceeds two hundred dollars ($200) the sum of two dollars ($2), and if the defendant shall at the same time file with the clerk a demand in writing of a trial by jury he shall pay to the clerk the further sum of six dollars ($6) to be applied towards the payment of the fees of jurors in said court.” Hurd’s Stat. 1905, p. 653. It is urged that this statute violates section 5 of article 2 of the constitution of the State, which provides: “The right of trial by jury as heretofore enjoyed, shall remain inviolate; but the trial of civil cases before justices of the peace by a jury of less than twelve men may be authorized by law.” The ground of this objection is, that prior to the adoption of the constitution of 1870 parties litigant enjoyed the right to a jury trial in a court of record without the payment of -any money for jury fees or to apply upon jury fees, and that for this reason the statute, which requires the payment, when a jury is demanded, of six dollars to apply on such fees, is a denial of or an interference with the right of trial by jury. In support of this contention plaintiff in error cites three cases, neither of which is in point and neither of which is analogous to the one at bar. It has frequently been held under constitutional provisions substantially identical with ours, that a requirement that the jury fees fixed at a reasonable amount, or a sum of money designated as a “jury fee” not greater in amount than the statutory compensation of the jurors, be paid by one of the parties prior to calling the jury, is not a denial of or an encroachment upon the right of trial by jury. Connors v. Burlington Railroad Co. 74 Iowa, 383; Adams v. Corriston, 7 Minn. 456; Rollins v. Nolting, 53 id. 232; Venine v. Archibald, 3 Colo. 163; Conneau v. Geis, 73 Cal. 176. The reasoning of the Supreme Court of Minnesota in the case above cited from Vol. 7 of its Reports commends itself to our judgment. It is there expressed in the following language: “We can see no valid objection to a reasonable fee of this kind. The constitution does not guarantee to the citizen the right to litigate without expense, but simply protects -him from the imposition of such terms as unreasonably and injuriously interfere with his right to a remedy in the law or impede the due administration of justice; and that a party who demands a trial by jury should be required to advance a small jury fee, whether it is considered as a tax on litigation or as a part of the expense which is necessarily incurred in his behalf, seems no more liable to a constitutional objection than is the requirement that the fees of the clerk, sheriff and other offi-' cers shall be paid in advance when demanded. If the clause in the constitution means that we shall be permitted to litigate literally ‘without price,’ there is an end to all fees, from the issuing of summons to the entry of satisfaction of the judgment.” The statute here assailed is not violative of the section of the constitution above set out. When the history prepared by defendants in error was delivered to plaintiff in error he seems not to have been pleased with it and declined to accept it. Upon the trial he sought to show that it was not prepared in accordance with certain representations made to him by the young man who took his subscription. He does not say that any artifice, amounting to fraud and circumvention, was used to induce him to sign the contract or that he did not understand what he was signing. The effect of his contention is that the instrument which he signed does not fully disclose the agreement of the parties. The offer of the evidence which was excluded was merely an attempt to vary the terms of the written instrument by parol. The assignment of error under consideration is therefore without merit. The judgment of the municipal court will be affirmed. Judgment affirmed.