Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818 Written: June 1818. 
Transcribed by MSGenWeb, Jan 2006
Term 1841.]                        ERRORS AND APPEALS                                Pgs. 419 - 425

Coleman et al. v. The Mississippi and Alabama Rail Road Company

In a motion against a sheriff and his sureties for failing to return an execution, where there was no fact disputed but the want of notice, it was     held that the defendants were not entitled to a jury trial.
Notice of a motion was returned served by a coroner, who it was said was not qualified to act; the court held that inasmuch as proof of service     would have rendered it good, the presumption must be that such proof was made, in absence of any showing to the contrary.

    ERROR to the circuit court of Rankin county.
    This was a motion against the sheriff, Willis P. Coleman, and his sureties, for a failure to return an execution. Judgment was rendered for the plaintiffs in the motion. Exceptions taken, and writ of error.
    The defendants in the motion demanded a jury trial, which was refused. It did not appear from the record, that, there was any fact in dispute, except the want of notice. The bill of exceptions contained a copy of a notice returned served by the coroner, who it was said was not legally qualified; but parol evidence, if any in relation to the service, did not appear. The error principally relied on, was the refusal of the court to award a jury.

    W. Yeger, for plaintiffs in error.
    The only assignment of error necessary to look at is the second, to wit: "The court erred in refusing a jury when demanded by plaintiffs in error."
    This motion was made under the act of 15th February, 1828, sec. 6, Laws of Miss. 153. The statute is silent as to the right of the parties to a jury, but the constitution provides that "the right of trial by jury shall remain inviolate." Consti. art. sec. The remedy by motion against sureties, is a substitute for the action of debt or covenant. By the rules of the comman law, the surety had a right to a jury to ascertain all the alleged defaults of the sheriff, his principal. When the remedy by motion was given, as a substitute for the former actions, although the legislature is silent as to the right of the party to a jury; yet the constitutionality of the law can only be sustained by construing the intention to have been to have allowed a jury whenever a party demanded it. Smith v. Smith, 1 Howard, 102.
    Had the law taken away the right of a trial by jury in express words, it would clearly have been unconstitutional: not having done this, the law may be deemed to be unconstitutional, but the right to a jury remains, and it is error in the court to refuse one when asked.
    It has been argued upon the supposition that the law took away the right of a jury, that these parties having become sureties since the passage of the law, that they are therefore presumed to have waived their right to a jury by the act of becoming sureties. Such an argument is untenable, for it would place it in the power of the legislature to abolish the trial by jury entirely in relation to all subsequent contracts of offences. S Yerger, 246.
    The bill of exceptions shows that a jury was demanded, and though inartificially drawn up, is sufficiently certain to show that this was asked before judgment, and after the calling up of the motion, and although no particular issue was made up, yet as it has been decided, that the party making the motion must prove all the facts alleged in his motion, and cannot take a judgment by default, whenever a demand of jury was made, it certainly was thereby intended to put in issue all the facts alledged in the motion, and to put the plaintiff upon proof of them before the jury. No formal issue was necessary, because te statute providing the summary remedy by motion, was intended to supercede the necessity of long and tedious pleas. 3 Marshall, 172.

    P. & L. Lea, for defendants.
    It is insisted that the refusal of the court below to allow a jury when demanded by the plaintiffs in error, was a violation of that provision of the constitution which declares that "the right of trial by jury shall remain inviolate." The position will appear to be erroneous in several views.
    1. On the trial of motions against deliquent sherriffs for a failure to return executions, the law does not contemplate or intend the intervention of a jury. By the act of 15th February, 1828, (Laws of Miss. 11.) it is provided, that judgments may be recovered against them, on motion, in three specified cases. 1. For failure to pay over money collected. 2. For making a false return. 3. For a failure return. In the two first cases it is further provided, that a jury may be compannelled to try the facts on issue joined under the direction of the court, when the fact does not appear on the record. But in the third case, of a failure to return, (the case at bar,) there is no such provision; the legislature having considered, no doubt, that a jury is not necessary to determine whether an execution has been returned according to law. That being, ordinarily, a matter not in pais, but of record, it is left to be determined by the court according to the well established principles of the common law. There is no error, therefore, in the judgment of the court below, unless the act, in strict conformity to which it was rendered, be itself unconstitutional. Is it so?
    2. The right of trial by jury is so highly prized by the citizen, and is of such inestimable value, that objections to acts of the legislature upon the ground that they infringe the right, are apt to be regarded with all due favor. But the law authorizing a summary remedy in cases like the present, is of such palpable utility and is so greatly conducive to the ends of justice, that a judgment of this enlightened tribunal pronounciing it unconstitutional, withou the consideration and cautious circumspection which the importance of the subject demands, is not to be apprehended.
    It is observable that while there has been an increasing jealousy concerning the right of trial by jury in England and the United States, in both of which it is justly regarded as the bulwark of civil liberty, there has also been a diversiform extension of the remedy by summary proceeding. This coincidence is strangely anomalous if the right and the remedy be incompatible. But the truth is in the negative of the proposition.
    The constitutions of most, if not all the states, contain in substance, similar provisons in relation to the right of trial by jury; and so, of the Federal Constitution. Enclp. Amer. art. Jury. It is also true, that in many of the states, probably in all, there are various enactments authorizing recovery by summary proceedings.
    Vol. V.--36
But in what state has it been held that an act like the one under consideration is unconstitutional? A different doctrine has been established, it is believed, by a series of concurrent adjudications.
    In Tipton v. Harris, Peck's Rep. 414, this question is taken and discussed with the characteristic ability of the learned judge (Haywood) who delivered the opinion of the court. It is there expressly decided, that an act authorizing a summary proceeding by motion on a prison bounds bond (an act in strict analogy to our own) is no infringement of the constitution, although the defendant insists on a trial by jury. And, in an earlier case, Hugh L. White, Judge, held, that where a statute authorizes a judgment on motion, and is silent as to notice, one is necessary. Cooke's Rep. 258. These cases have never been overruled; but have been uniformly sustained by many subsequent adjudications, all recognizing, expressly of impliedly, the validity of the laws on which they are founded. They are supported by decisions in other states. In Kentucky, whose statute, quoad hoc, is said to be almost the counterpart of ours, the constitutional objection has been frequently raised and as often disregarded. Hardin, 254. 1 Bibb, 267. 1 Marsh. 441. 4 Littell, 202. In Alabama, it has been decided, that the provision of the constitution inhibiting the grant of exclusive privileges, nor an infringement of the right of trial by jury. 1 Ala. Rep. 23. The same doctrine has been affirmed by the highest judicial authority in the Union. By the act of the legislature of Maryland, incorporating the "Bank of Columbia," the clerks of the courts of that state were authorized on requisition of the President of the Bank, to issue executions against its debtors, which were not liable to be stayed or delayed by supersedeas, writ of error, appeal, or injunction. This comparatively rigorous enactment, the Supreme Court of the United States have decided is not repugnant to the constitutional? "The right of trial by jury shall remain involate;" i.e. a trial by jury shall hereafter be allowed in every case where by the common law it is now allowed. The constitution means this and nothing more. It is content to perpetuate the right; and makes no provision for its enlargement or modification. Before, therefore, a statute authorizing a summary remedy against delinquent officers, can be considered an infringement of the right of trial by jury, it must be made appear that such officers were entitled to a jury trial when the consititution was adopted; for, the presumption is always in favor of the validity of law, until the contrary is clearly demonstrated. 1 Cond. rep. 211. But, can it be demonstrated that delinquent officers in cases like the present, were entitled to a jury trial by the rules of the common law? On the contrary, it is well known that they have been subject to summary proceedings from the earliest period of English jurisprudence. And Mr. Justice Blackstone declares, that such speedy remedies must necessarily be as ancient as the laws themselves. 4 Com. 286.
    3. It being established that legislative enactments auhorizing recovery by summary proceeding, are not in derogation of the right of trial by jury, it is scarcely necessary to notice the distinction attempted to be made in this case between the sheriff and his securities. The law makes no such distinction; and if the invalidity of that, according to the principle of the case last cited, be not clearly demonstrated, it must be enforced conformably to the letter and the intention of the legislature. There is no alterntive but to execute or reject it. If that be valid, by what authority could the court have allowed the intervention of a jury, though demanded by the defendants below?
    4. But suppose the securities as such had the right to a jury trial--did they ask it? And what was the issue proposed to be tried? The record says that "before this case was taken up the defendants by their counsel came into court and denied the fact of notice and demanded a jury." It appears then, that the demand was made by all the defendants, jointly, and not by the securities alone. It being conceded that the sheriff was not entitled to a jury, and the securities having chosen to associate him with themselves, in making the demand, it follows that the demand as made could not be allowed. It appears, also, that the fact of notice was the only issue to be tried. The language will admit of no other sensible construction. But, "whoever appears in due time, ipso facto, proves that he had due and timely notice;" and these defendants say they appeared even "before the case was taken up." A jury could not, therefore, have been necessary to try that issue. Nor was it necessary to try the fact of failure to return it; for that the bill of exceptions expressly admits was proved by the record. Indeed, it is manifest from every view of the case, that a jury would have been absolutely useless for any proper purpose. It has been conducted throughout with all the strictness required y the law; and if the judgment of the court below is to be reversed because of the unconstitutionality of that, it will be difficult to find one among the whole class of summary remedies that may not be nullified by the same fatal objection. Pereat unus, percant omnes.

Per Curiam.
    A motion was made in the circuit court of Rankin county, against the sheriff and his sureties for failing to return a fieri facias, and judgment rendered thereon. A bill of exceptions was taken to the opinion of the court in sustaining the motion, and this writ of error brought.
    It seems that the defendants objected to the judgment and asked for a jury trial, which was refused. It is insisted that the act giving the summary remedy by motion is unconstitutional, because it violates the right of trial by jury. This question was fully discussed, and a decision made at the present term of the court in the case of Lewis v. Garrett, and we need not again enter into the investigation. The act was held to be constitutional, and although we did not go so far as to say the court would be authorized to refuse to a party claiming it a trial by jury, yet we may safely say in this particular case they were not entitled to it. Nothing was denied which could make a jury necessary. No fact was disputed, except the want of notice, and that was a question to be decided by the court.
    The defendants denied that they had been served with notice, but in taking their exceptions they set out a copy which they had
in possession. I have not been able to detect any defect in it. Now although the notice may have been served by the coroner, who could not officially serve it, yet his service was good if proven, and the defendants themselves proved it by the copy. But we should be bound to presume that the coroner proved it in court, as his return appears on the original notice, because it does not appear but what the court had further evidence than the return of the coroner on the notice.
    Judgment affirmed.

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