Error
to superior court of Denver; MERRICK A. ROGERS, Judge.
Reversed.
Action
by Elizabeth Pleyte against Dirk Pleyte for separate
maintenance. Defendant denied the allegations in the bill,
filed a cross-bill for a divorce a vinculo, and demanded a
jury trial. The court refused trial to a jury, and on the
hearing entered a decree of divorce, on which plaintiff
assigns error.
RICHMOND,
P.J. dissenting.
The
other facts in the case fully appear in the statement of
BISSELL, J.:
In
1888, Mrs. Pleyte filed a bill against the defendant in error
to obtain alimony by way of separate maintenance. The husband
answered, denied the various allegations of the complaint,
set up sundry affirmative matters of a defensive character,
and filed a cross-complaint. In the cross-complaint he prayed
for a divorce a vinculo. On the 10th day of December
following the cause was set for trial on the 7th day of
January, 1889. When the cause came on for trial under the
order, the defendant demanded a jury for the trial of the
issue which had been tendered on the cross-complaint, but the
court refused to grant it, except on condition that Mrs.
Pleyte [1 Colo.App. 71] advance the costs incidental to the
procurement of a jury, as in the county court. This she
refused to do, and thereupon the court denied the
application, and proceeded to try the case, and entered a
decree of divorce. The superior court, in which the cause was
tried, was created by an act of the legislature February 10,
1883. Its jurisdiction is granted in this language:
"Shall have and exercise such jurisdiction and powers in
civil actions, and be governed by such practice and
proceedings, as now are or may hereafter be provided by law,
or may be applicable to district courts." By section 3
of the act, the jurisdiction was to be exercised within
certain territorial limits, and that section in general
provided that the court should be governed, in all
proceedings with reference to practice and pleadings, by the
laws determining such matters for the district court. Its
process was to be issued and served in like manner as
processes were issued and served from the district court.
Section 15 of the act related to the procurement of juries in
civil causes, and it substantially provided: "In any
action *** in which a party is entitled to a jury such party
may have a jury summoned," etc., "in the manner
provided by law providing for the summoning of jurors to try
causes in the county courts." There were no other
provisions in the act which related either to the
jurisdiction of the court, or to the method which was to be
adopted to obtain the juries by which the causes should be
tried. The county court act contained a section which
substantially enacted that in any action pending in that
court either party might have a jury by advancing the fees
for the payment of the jurors, and that the amount paid
should be taxed as costs. The act likewise provided that the
jurors should be summoned by an open venire directed to the
sheriff of the county. There was no other provision in the
act with reference to the process or means by which a jury
should be procured in that court. In 1868 an act upon the
subject of divorces was adopted by the territorial
legislature, and it has remained in force from that time to
the present, having been re-enacted in the [1 Colo.App. 72]
General Laws of 1877 and the Statutes of 1883. By these acts,
which were in force at the time of the trial of this suit,
the district court was given jurisdiction in all cases of
divorce and alimony. Its process, practice, and proceedings
were to be as in chancery, "except as modified by this
particular statute." By the fifth section, all cases of
this sort must be tried by jury when the "charges in the
bill are denied." It would appear from the record that
the superior court had adopted a rule requiring parties who
demanded a jury to prepay the jury fees as a condition
precedent to the enjoyment of that sort of a trial. The trial
without a jury is the principal error complained of.
Sullivan
& May and Coe & Freeman, for plaintiff in error.
Patterson
& Thomas, for defendant in error.
BISSELL,
J., (after stating the facts.)
The
question presented by the record is one of gravity to the
parties in this action, but is of little consequence to the
profession. The superior court has been abolished, and the
act to be construed entirely
[28 P. 24]
repealed, and the question to be determined is therefore of
slight general interest. The importance of the decision to
the parties to the action is the only excuse for a citation
of the statutes and the assignment of the reasons upon which
the decision is based. The act creating the court contains
but one section, which specifically relates to the matter of
the present inquiry, viz., the right of trial by jury in
these actions in the superior court. The question cannot be
answered by a consideration of that section. It is neither
definite, absolute, nor unequivocal, and, under these
circumstances, may be taken to be controlled as to its
implications by other portions of the act. To construe the
act with reference to this matter, it is essential to
ascertain what jurisdiction was granted, and whether the
jurisdiction was, as to particular actions, subject to any
limitations which were expressed in the statute, [1 Colo.App.
73] or which necessarily resulted from the fact that the
jurisdiction conferred was of itself limited. It will be
useful, first, to inquire whether the jurisdiction of the
district courts was in any wise limited in respect of this
matter, since it will appear that this was the only
jurisdiction conferred upon the superior court. A discussion
as to the extent and scope of the jurisdiction of chancery
courts in actions for divorce is wholly unnecessary. It may
be conceded at the outset that originally, when triable at
all by such tribunals, these causes were triable only by the
procedure which was suited to courts of equity, and which
always prevailed in them. By analogy, wherever the action for
divorce existed by statute, and there was no provision made
with reference to the method of trial, the courts always
followed the established practice in those particulars, tried
the cases as in equity, and rendered such decree as the
statute and the case warranted. It must be conceded that in
this state the cause of action for divorce is purely
statutory. No suit for divorce will lie unless it be based
upon some one of the statutory grounds, and unless it be
brought in the manner prescribed. When, therefore, litigants
are by statute given the right to bring suits in the district
court for the dissolution of their matrimonial obligations
upon certain specified grounds, and the statute imposes
certain restrictions and limitations, either as to the right
of action or as to the method of procedure, those conditions
must be complied with to entitle the court to render a decree
in such suit. There might have been some embarrassment in the
determination of this question if the statute had simply
provided that the district court, sitting as a court of
chancery, should have jurisdiction, but it further enacted
that the chancery process, practice, and proceedings should
be subject to the limitations expressed in the act. It
therefore follows that, when the act subsequently provided
that every issue of fact raised by a denial of the alleged
grounds for divorce must be tried by a jury, such an issue
could only be tried in that way, and the right to maintain an
action for a divorce was subject to that particular and
special limitation, and to [1 Colo.App. 74] disregard it, and
try the case and render a decree without the verdict of a
jury upon the issues would be error, unless in some legally
binding manner the party had waived the right. That the same
result must follow when the superior court failed to observe
the statutory requirement seems equally clear. By the terms
of the act, its jurisdiction was made concurrent with that of
the district court. The jurisdiction was to be exercised
within specified territorial limits, over those
subject-matters of which the district court had general
jurisdiction. The causes were to be tried by the same
methods, and under the identical statutes, regulating the
practice, pleadings, and proceedings in the district court.
It cannot be urged, as in the case of the county court, that
by virtue of its general chancery jurisdiction it might hear
and determine according to the ancient chancery methods;
because, by the express terms of the statute creating it, the
only jurisdiction granted was one co-ordinate with that of
the district court. This co-ordinate jurisdiction must thus
be taken with every expressed limitation; the powers granted
must be as general, and likewise as circumscribed, as those
possessed by the district courts. There would thus seem to be
no escape from the conclusion that if the jurisdiction of the
district court in matters of divorce was subject to the right
of trial by jury where an issue of denial was made by the
answer, that of the superior court could only be exercised
under the same condition, and subject to the same
restriction. The force of this position is sought to be
avoided by reference to the fifteenth section, which provided
for the method of summoning a jury in causes triable in that
court. No other provision upon the subject, or having any
bearing upon it, can be found in the act. That section only
enacts that a jury shall be summoned in the manner provided
for summoning juries in the county court. It places no
limitation upon the right to a trial by jury, nor does it
re-enact the section contained in the county court act by
reference to it, nor does it, by inference or implication,
adopt the limitation upon the right to a jury contained [1
Colo.App. 75] in that provision. The right to a jury trial in
the county court is undoubtedly dependent upon the prepayment
of the fees of the jurors by the party who makes the demand.
It is likewise true that the jury in that court is to be
summoned by an open venire, directed to the sheriff of the
county, under the rules and regulations which may be adopted
by the court for the purpose. But it is not easy to see in
what way the method of procurement is at all affected by the
limitation upon the right to a jury, elsewhere expressed in
the statute. Because it happens to be true that a litigant in
the county court can only obtain a jury by a prepayment of
the fees, that circumstance in no wise modifies, affects, or
in any way relates to the mode of procuring the jury when
once the right to it has attached. The two parts of the
statute relate to two different subdivisions of the same
general subject-matter; the one having a relation to the
right itself, and the other providing means by
[28 P. 25]
which the right shall be enforced when it has once accrued.
The true construction of section 15 of the superior court act
is thus rendered apparent and easy. It did not attempt,
either in terms or by implication, to re-enact the entire
county court provision with reference to the matter of
juries. It simply enacted that a jury should be summoned in
the manner provided by law for summoning jurors in the county
court. It neither stated nor provided that the right to a
jury should be subject to the limitations, or should be had
upon the conditions under which they might be had in the
county court, nor did it enact that parties might have juries
as and when they might in such courts, and that such juries
should be summoned under like conditions and circumstances as
were provided for in the act relating to county courts, but
apparently by legislative intention withheld all reference to
the right of trial by jury, and made only that portion of the
statute applicable which related to the method of
procurement; the language being, "when a party is
entitled, it shall be summoned in the manner providing for
summoning juries," etc. Had the statute provided that a
party might have a jury to try the issue as [1 Colo.App. 76]
in the county court, or under like circumstances and upon
like terms, which should be summoned in the manner provided
by law for the summoning of jurors in that tribunal, no
question could have been raised in the premises. A careful
selection of such phraseology as would only relate to the
method of procurement, when less than half a dozen words
would have made plain their intention and impose a condition
upon the right, renders it evident that the legislature had
no such purpose. To import, by an unnecessary construction, a
condition into a statute which would have such an important
effect upon the rights of parties in this class of causes,
would be a violation of all well-recognized canons of
statutory construction. The unwisdom of importing a condition
into a statute is easily seen when once the nature of the
cause of action is considered. The interests of good morals
and of society require that these actions should be
surrounded by every impediment which would either tend to
prevent their increase or to render an unjust result
impossible. Publicity creates a wall over which none but just
suitors can climb. For many years it has been patent to all
courts and to all observant citizens that there is no class
of controversies in which the courts are more frequently
imposed upon, and the right more often defeated, than in
suits of this description. The policy of the legislature in
its enactment upon the subject of divorce and alimony is
plainly foreshadowed by the provisions with reference to
trials by jury. It should be followed and enforced by the
courts, unless in plain terms, or by necessary statutory
construction, a different rule has been declared applicable
to actions of this description. Varioious other errors have
been assigned and discussed by counsel in their briefs, but
they are not likely to be of importance upon the subsequent
trial of the case. The case is reversed and remanded
RICHMOND,
P.J., (dissenting.)
I
regret my inability to concur in the foregoing opinion. [1
Colo.App. 77] The record in this case discloses the fact to
be that in the superior court plaintiff in error demanded a
trial by jury. The court then, in accordance with the rules
and its understanding of the statute creating said court,
requested the payment of fees in advance for the jury, with
which request plaintiff in error declined to comply. The
court thereupon proceeded without a jury, and, in the absence
of plaintiff in error, heard the testimony upon the averments
in the cross-complaint. The only question presented in the
case is, was plaintiff in error entitled to a jury trial?
Section 5, c. 32, Gen.St.1883, provides: "In all cases
for a divorce, where the defendant shall appear and deny the
charges in the complainant's bill alleged, the same shall
be tried by jury." The act creating the superior court
provides "that, in any action pending before a superior
court in which a party thereto is entitled to a jury, such
party may have a jury summoned to try the same in the manner
provided by law for summoning jurors to try cases in the
county court." Gen.St. p. 938, § 15. The act relating to
county courts provides "that, in any action pending
before the county court, either party may have a jury
summoned to try the same by advancing fees for the payment of
such jurors, and, when judgment shall be rendered in favor of
the party demanding a trial by jury, such party shall recover
the fees paid by him for such jurors of the adverse party,
and have the amount thereof taxed as a part of the costs in
the case." Id. p. 247, § 21. Under the act
creating the superior court, it is provided by section 3 that
such superior court shall have original and concurrent
jurisdiction with district courts, within the limits of the
several cities and incorporated towns for which they were
created. That the said courts of the state in all civil
causes, both at law and in equity, shall have such appellate
jurisdiction in such causes as is provided by law for the
district courts, and shall be governed in all proceedings
with [1 Colo.App. 78] reference to process and pleading by
the laws now or hereafter to be enacted for the district
courts. All process issued out of the superior court shall be
issued and served in like manner as similar process is issued
and served from district courts of the state. Section 469,
Code Civil Proc., provides that in all civil actions within
their jurisdiction the county courts, and the judges thereof,
shall have the same power to grant all orders, writs, and
processes which the district court, or the judges thereof,
have power to grant within their jurisdiction, and to hear
and determine all questions arising within their jurisdiction
as fully and completely as the district court, or the judges
thereof, have power to do under the laws of this state,
except as otherwise provided in this act. It cannot be denied
that the act creating the superior court is a special act. It
cannot be denied that the act creating the superior court
does not provide for the summoning of jurors, as is provided
by the law and practice act
[28 P. 26]
relating to the district courts. It cannot be asserted that
the compensation of jurors summoned in the superior court is
in any manner provided for by the act creating the court,
save and except the fees be advanced as a prerequisite to the
issuance of the summons, as provided by the act concerning
trial by jury in the county court. Is it not a fact that a
general statute cannot prevail over a special one, and does
not the theory that section 15 of the act pertaining to the
superior court simply refers to the manner of summoning a
jury sink the spirit of the act into the letter? Sedg.St. &
Const.Law, 99-105, 229; Branagan v. Dulaney, 8 Colo. 408, 8
P. 669. "Leges posteriores priores contrarias abrogant.
'If two inconsistent acts be passed at different times,
the last' *** 'is to be obeyed; and, if obedience
cannot be observed without derogating from the first, it is
the first which must give way.' " Under the act,
to-wit, "the Code of Procedure, the method of summoning
a jury, the manner in which they may be drawn, by whom drawn,
and from what particular class of [1 Colo.App. 79] people
they may be drawn, is provided for, so far as the district
court is concerned." Is that true so far as the superior
court is concerned? The superior court, by section 4, is
conceded to have the same powers, when not otherwise provided
by law, to prescribe by rule the time of pleading, and shall
have the same powers as the district courts have to regulate
their practice, process, and proceedings in other respects.
It was the rule of the court that a party demanding a jury in
any case pending should advance the fees for the payment of
the same. Does the provision of section 3, which provides
that said superior court shall be governed in all proceedings
with reference to practice and pleading by the laws now or
hereinafter to be enacted by the district courts, inhibit the
superior court from providing that, in cases where either
party litigant desires a jury, they shall advance the
compensation necessary to be paid for the services of such
jurors? This, in my judgment, is not clogging by restrictions
the right to a trial by jury, but simply provides for a
condition precedent to the exercise of that right. The
practice in the county court is the same as that in the
district court, the same as that provided in the superior
court and district court, save and except the explicit
wording of the statute providing for a jury trial in the
county court.
Now, do
the words, "shall be summoned in the same manner as in
the county court," refer simply to the method of
summoning the jury, or have they not a larger and more
comprehensive operation, to-wit, they shall be summoned in
the same manner and upon the same terms and conditions? In
other words, the superior court should summons a jury upon
the advance of the fees by the party demanding a jury. No
provision is made for a jury, or rather for the payment of a
jury, in any case, unless they be summoned in the same manner
as they are in the county court. It occurs to me that, had it
been in the contemplation of the legislature that a jury
should be summoned in the same manner and under the same
circumstances as is provided for [1 Colo.App. 80] in district
courts, the word "district," instead of
"county," would have been used. Thus we have left
the act without ambiguity. There can be no doubt as to what
the legislature meant. They said, "In this instance we
will create a court with limited jurisdiction, limited to
cases arising within the city of Denver, a city of a certain
population, limited to the extent that only cases arising
within the domain of that city would come within the
jurisdiction of that court." The purpose of the act was
to expedite litigation, which, by reason of the increased
population and commercial importance of Denver, had rapidly
increased to such an extent that the then existing district
courts of Arapahoe county could not cope with the volume of
business; and, for the purpose of aiding in the disposition
of the same, they provided that in all cases the expense
incident to litigation, by the constant attendance of jurors
from time to time during eight, perhaps ten, months of the
entire year, should not be necessary, and that every litigant
who should present his case to that court should have a right
of trial by jury on condition that he should do as was
required of litigants in the county court, to-wit, advance
the fees of jurors. This being so, and being a subsequent act
to the act creating the district courts, and to the act
creating the county courts, and to the divorce and alimony
act, it, in my judgment, operates to suspend the provisions
of the divorce act, which provides that, in cases where
complaint and answer are made, the causes shall be tried by a
jury. It suspends it only to the extent of saying that they
shall be tried by jury when the parties litigant demand it,
and comply with the rules of that court, to-wit, payment of
fees. I am utterly unable to concur in the opinion that, by
reason of the provisions of the act concerning divorce and
alimony, a party is entitled to a jury, irrespective of the
rules and regulations that the courts may establish by
authority of subsequent legislation concerning such trials.
When the constitution declared that trial by jury should be
observed, no restriction was thereby laid on the
legislature [1 Colo.App. 81] as to erecting or organizing
judicial tribunals in such manner as might be most conducive
to the public convenience and interest.
It is
true that the legislature cannot impose any provisions
substantially restrictive of the trial by jury. They may give
existence to forms; they may modify the powers and change the
form of courts; still the sacred right of any citizen to
trial by jury must be preserved. Here the right of trial by
jury is given upon condition. True, the party may be
subjected to some inconvenience in paying the fee, but this
inconvenience does not amount to a denial of right. If the
provisions of the constitution providing for a trial by jury
can be thus qualified, made operative upon condition, why,
then, cannot a trial by jury provided for in the statute be
subjected to subsequent legislation and subsequent
[28 P. 27.]
rules of practice, promulgated by courts of subsequent
creation under subsquent powers? An act which authorizes a
judgment to be rendered without the intervention of a jury is
not on that account unconstitutional, nor would it be where
it guaranties this right ultimately, as it does in this case.
If a party, therefore, does not demand a trial by jury in
conformity with the rules of the court and the statute, pray
tell me why he or she should complain? This action was
originally commenced in the superior court by the plaintiff
in error. The act creating the superior court was before her,
of its existence and provisions she was expected to take
notice, and she knew in going into that court that the
practice of that court was to summons jurors upon request of
either party, plaintiff or defendant, and upon payment of
fees. Why the rule should obtain in divorce suits different
from that in all other actions, both in law and in equity, I
cannot fathom. The terms may be onerous, but this is purely a
question of expediency, and one which must, from its very
nature, address itself exclusively to the law-maker. It is
difficult to prescribe limits to the powers of the
legislature. Cases might [1 Colo.App. 82] arise which would
authorize that body to act very far in disregard of rules and
regulations which are ordinarily observed in the enactment of
the law for the assertion and defense of rights. There is no
infringement upon the right of trial by jury, either under
the act concerning divorce and alimony, or in the provisions
of the constitution of the state. It is simply exacting the
payment of fees as a prerequisite to that right. I may here
remark that the law always properly manifests its tenderness
for the impotent and the poor, and the plaintiff in this
case, if without means or ability to pay or advance the fees
necessary to secure the jury, could have made the affidavit
that such was her condition, and by the provisions of our law
she was then absolutely entitled to prosecute that case and
secure that jury by order of that court at the expense of the
people. To the rules of conduct prescribed by law and the
rules of the superior court she submitted herself, and she
was bound by its judgment.
In
Conneau v. Geis, 73 Cal. 176, 14 P. 580, the supreme court
said the rule requiring a party demanding a trial by jury to
deposit the jury fees with the clerk in advance of the trial
is a reasonable regulation of the mode of enjoyment of the
right of trial by jury, and is not a denial or impairment of
the right; and the party demanding a jury trial, upon refusal
to comply with the rule, waives his right to a jury. Right of
trial by jury in equity and divorce cases is a matter of
statute. At common law no such right exists. The method of
trial and compensation in such cases is well known to every
lawyer, and, being a creation of statute, I think it clearly
follows that the superior court, in establishing the rule
that where a party in any case, without exception, demanded a
jury, such party should advance the fees, and by a failure to
do so he or she waives the right to a jury, was warranted by
section 15 of the act creating said court. Let it be observed
that the act creating the superior court makes no provision
for jurors, except by section 15, which provides that they
may be summoned to try the issue in the manner provided by
law for summoning jurors in causes in the [1 Colo.App. 83]
county courts. By the method providing for summoning jurors
in the district court, in every case save equity, a right of
trial by jury is granted in the district court, and at each
and every term of the district court a jury of 12 or more are
in constant attendance, and in the county and superior courts
never. The very language of section 15 says, in any action
pending before a superior court, in which a party thereto is
entitled to a jury, such party "may have" a jury.
"May have" a jury implies that they must ask for a
jury, and they may be summoned, under the rules and
regulations of that court, in the same manner as jurors to
try causes in the county courts are. It is well settled that
a subsequent statute, which is clearly repugnant to a prior
statute, necessarily repeals the former, although it do not
do so in terms; and, even if the subsequent statute be not
repugnant in all its provisions to a prior one, yet, if the
latter statute was clearly intended to prescribe the only
rule that should govern in the case provided for, it repeals
the original act. Sedg.St. & Const.Law, pp. 104, 105; Korah
v. City of Ottawa, 32 Ill. 121. Cases without number can be
found which declare that every statute is by implication a
repeal of all prior statutes, so far as it is contrary and
repugnant thereto, and that without any repealing clause. It
can also be said that the principle is without contradiction
that, where two statutes can be made to stand together, it is
the duty of the court to give them full effect. Sedg.St. &
Const.Law, p. 105. The latter principle, so far as the
practice in the county court, superior and district courts,
is concerned, can be applied without doing violence to
reason, and yet support every right and privilege that the
plaintiff in error could claim under any provision of any of
the acts applicable to her case. The first principle above
recited supports the contention that I make, to the effect
that the act creating the superior court, in so far as it
refers to a jury trial in causes therein pending, is
obnoxious to the provisions of the law providing for jury
trials in district courts, and is consistent with the
provisions of the act [1 Colo.App. 84] providing when and in
what manner jury trials may be had in the county court. In
expounding the acts of the legislature, it is a
well-established rule that the intention of the maker must
prevail, and this is to be collected from the words,
"and the necessity of the legislation." I am
thoroughly convinced that the plaintiff in error is without
remedy in this court, and that the judgment of the court
below should be affirmed.