Summary
In Cleveland Ry. Co. v. Halliday, 127 Ohio St. 278, 188 N.E. 1, 2, the rules of court provided for less than a 12-man jury while the statute provided that jury trials would be held with a jury of 12.
Summary of this case from STATE EX REL. WEBER v. MUNICIPAL COURT, ETCOpinion
No. 24037
Decided November 15, 1933.
Jury trial — Substantial right, and not merely procedural question — Court cannot make jurytrial rule applicable in single county — Trial to jury of six jurors unless twelve demanded — Rule-making power — Court rule yields to statute in conflict.
1. The right to a jury trial is a substantial right, and does not involve merely a question of procedure.
2. A court is not authorized, under its inherent rule-making power, to make a special rule relating to jury trial applicable in a single county of the state.
3. Such rule of court, which conflicts with a valid statute, must yield to the statute.
ERROR to the Court of Appeals of Cuyahoga county.
In this case a personal injury action was filed in the court of common pleas of Cuyahoga county. After issue joined, the case came on for trial and the court presented to the parties for impaneling a jury of six persons, to which plaintiff then and there objected, and plaintiff then and there demanded a panel of twelve jurors as provided by the Constitution and laws of the state of Ohio. The court overruled plaintiff's objections, and refused the demand of plaintiff for a jury of twelve, and ordered the trial to proceed with a panel of six jurors, to which rulings of the court plaintiff then and there duly excepted.
No waiver by the plaintiff of a jury of twelve appears in the record of the case.
A jury of six was duly impaneled, and the plaintiff then and there objected to such jury being sworn to try the issues in the case, on the ground that plaintiff was entitled to a jury of twelve, which objection was overruled by the court, to which ruling the plaintiff then and there duly excepted.
The plaintiff then presented his evidence in the case, and rested. Whereupon the court, upon motion to withdraw the case from the jury as to the defendant the city of Cleveland, and direct a verdict in its favor, granted the motion as to such defendant, the trial of the case continuing as to the defendant the Cleveland Railway Company.
Thereupon the defendant the Cleveland Railway Company presented its evidence in the case and rested, and the plaintiff presented evidence in rebuttal and rested.
The plaintiff again objected to submitting the case for a determination to a jury of six, and demanded that it be retried to a jury of twelve, which objection and demand were overruled by the court, to which ruling the plaintiff excepted.
The cause was then argued to the jury by counsel for the respective parties.
Thereupon plaintiff again objected to submitting the case to a jury of less than twelve in number, which objection was overruled by the court, to which ruling plaintiff excepted.
The court then charged the jury, and the case was submitted to the jury. The jury returned a verdict for the defendant, and judgment was rendered for the defendant.
Error proceedings were prosecuted to the Court of Appeals of Cuyahoga county, which court reversed the judgment of the court of common pleas "for error in refusing demand for jury of twelve and submitting said cause to jury of six as against objection; no other error appearing in the record," and remanded the case to the court of common pleas for further proceedings.
The case comes into this court upon allowance of motion to certify the record.
Further facts are stated in the opinion.
Messrs. Squire, Sanders Dempsey, Mr. R.C. Green and Mr. Henry J. Crawford, for plaintiff in error.
Mr. Arthur P. Gustafson, for defendants in error.
The one question presented by the record in this case is whether the court of common pleas committed reversible error in refusing the demand of the plaintiff below for trial to a Jury of twelve. The court of common pleas held that the plaintiff below had waived such a jury and had consented to trial by a jury of six, pursuant to a general rule duly adopted by the court of common pleas of Cuyahoga county. This rule, which was based upon "the desire of the judges to cooperate in every reasonable manner in reducing the expense of operation" of the court of common pleas of Cuyahoga county, reads in its material portions as follows:
"(a) In all cases filed on and after April 15, 1932, where a jury is demanded, it shall be composed of six lawful electors, unless the parties agree to a lesser number. Any party desiring a jury of more than six lawful electors shall incorporate such demand in the original demand for a jury.
"(b) In all civil jury cases pending on and after April, 18, 1932 the parties will be deemed to have waived a jury of twelve and to have consented to try such cases to a jury of six, unless a demand for a greater number than six in writing shall be filed with the Assignment Commissioner before such cases appear in any active list published on and after April 11, 1932."
It is conceded that if the rule is valid, it applies to the facts of this record, that no demand in writing for a greater number than six jurors was filed in accordance with the rule, and hence it is contended that under the rule the plaintiff below must be deemed to have waived a jury of twelve and to have consented to try the case to a jury of six. The Court of Appeals held the rule invalid and therefore reversed the judgment of the trial court.
It is argued by counsel on behalf of the plaintiff in error that the rule is valid. They urge that the rule does not conflict with the Ohio statutes upon waiver of trial by jury, and that if it does conflict with the Ohio statutes, those statutes cannot be used to impair the judicial power and the inherent rule-making power of the court.
Does the rule conflict with the Ohio statutes on jury waiver?
Section 11379, General Code, provides: "Issues of law must be tried by the Court, unless referred as hereinafter provided. Issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial be waived, or a reference be ordered as hereinafter provided."
Section 11421-1, General Code, provides how a jury trial may be waived. It reads as follows:
"In actions arising on contract the trial by jury may be waived by the parties, and in other actions with the assent of the court as follows:
"1. By consent of the party appearing, when the other party fails to appear at the trial, in person or by attorney;
"2. By written consent, in person, or by attorney, filed with the clerk;
"3. By oral consent in open court entered on the journal."
Since Section 11379, General Code, sets forth that a court is authorized to try only those cases in which a jury has been waived under the statute "as hereinafter provided," and since this record shows that no waiver of jury trial was made as provided under Section 11421-1 the plaintiff in error cannot prevail unless the rule of court above quoted prevails over the statute.
The principle of the separation of the powers, executive, legislative and judicial, does not help us greatly in this controversy. This record does not involve such a question as that presented in Opinion of Justices, in re Dorr, 3 R.I. 299, at page 301, which involved the question of the constitutionality of an act of the Legislature providing for the reversal and annulment of a judgment of the Supreme Court of Rhode Island. The Supreme Court of Rhode Island in that case held that such legislation would be unconstitutional.
The question here presented is whether a rule of court as to waiver of jury trial prevails over a valid statutory enactment upon that subject. This question requires the consideration of the scope of the rule-making power of the court. As held both by this court and by other courts of last resort throughout the country, aside from common-law or statutory grant, the power to make rules of procedure is inherent in the judicial department. Kolkman v. People, 89 Colo. 8, 300 P. 575; 23 Illinois Law Review, 276; State, ex rel. Foster-Wyman Lumber Co., v. Superior Court for King County, 148 Wn. 1, 267 P. 770.
Section 1558, General Code, which grants to courts of common pleas in this state the power to make rules with reference to court procedure, is only declaratory of the inherent rule-making power already existing in courts. It reads, in part, as follows: "The judges of said common pleas court shall meet at least once in each month and at such other times as the chief justice may require, and shall prescribe rules regulating the docketing and hearing of causes, motions and demurrers and such other matters as are necessary for the advancement of justice and prevention of delay, and for the government of the officers of the court, not inconsistent with general laws."
This statute relates in its specific terms to rules dealing with procedural matters and the business of the courts. The inherent rule-making power also extends to procedural matters only. Thus Wigmore's vigorous article entitled "All Legislative Rules for Judiciary Procedure are Void Constitutionally," 23 Illinois Law Review, 276, has no application here. In fact, no more ringing defense of the merits of jury trial exists than an article by Dean Wigmore himself, to be found in the Journal of the American Judicature Society, in the issue of April, 1929, at page 166. But the right to a jury trial does not involve merely a question of procedure. The right to jury trial derives from Magna Charta. It is reasserted both in the Constitution of the United States and in the Constitution of the State of Ohio. For centuries it has been held that the right of trial by jury is a fundamental constitutional right, a substantial right, and not a procedural privilege. Martin v. Windsor Hotel Co., 70 N.Y. 101. Hence Section 1558 does not authorize a rule of court defining waiver of trial by jury in courts of common pleas. Moreover, the provision of Section 1558, "not inconsistent with general laws," specifically governs in this case. This rule of court is in conflict with general law, namely, with Sections 11379 and 11421-1, General Code.
It is true that this court has held valid a statute providing for waiver of jury under rule of court. Harry Goldberg Co. v. Emerman, 125 Ohio St. 238, 181 N.E. 19. In that case the validity of the municipal court act was involved, wherein it is provided that a municipal court may make rules dealing with the waiver of jury trial in civil cases. However, a long line of authorities in this state has established a distinction between trials of persons accused of minor crimes or prosecuting civil actions in inferior courts, and criminal trials in a court of record. Dailey v. State, 4 Ohio St. 57; Billigheimer v. State, 32 Ohio St. 435, at page 439; Hoffman v. State, 98 Ohio St. 137, 120 N.E. 234. In every one of these cases the Legislature had, by express statute, established either the right of a court to make a rule dealing with waiver of jury, or had itself set forth the circumstances which should constitute such a waiver.
We are conscious of the practical exigencies which led the court of common pleas of Cuyahoga county to promulgate the rule in question. No criticism is made of its motives, but holding as we do that trial by jury is a substantial right, and not a procedural matter, holding as we do that the statute has specifically outlined the way in which a jury may be waived, we inevitably conclude that this rule of court is invalid. It conflicts with general law, and it is not authorized under the inherent rule-making power.
Under this rule of court, waiver of trial by jury in the county of Cuyahoga was defined in a different manner from waiver of trial by jury in every other one of the eighty-eight counties of the state. To hold that this rule could materially modify the valid statute would be to hold that a court could make a special rule of court with relation to jury trial for one county different from the law prevailing in other sections of the state, a power which, in the words of Judge Spear, in Van Ingen v. Berger, 82 Ohio St. 255, 92 N.E. 433, 19 Ann. Cas., 799, "has been denied to the general assembly itself."
Entertaining these opinions, we are compelled to affirm the judgment of the Court of Appeals.
Judgment affirmed.
STEPHENSON, JONES, MATTHIAS, BEVIS and ZIMMERMAN, JJ., concur.
WEYGANDT, C.J., dissents.