Wright v. Hayes

2 Del. 389

• Court: Superior Court of Delaware
• Decided: July 5, 1838
• Status: Published

Opinion

Per Curiam:

Harrington, Justice.

The justice could not do otherwise than make the first adjournment as neither of the parties was present; and it appears from the record that the second adjournment was granted to give an opportunity for summoning witnesses. It was not an arbitrary postponement, but one which the justice must have considered necessary to the proper trial of the cause. In addition to this, both parties appeared on the day to which the cause stood adjourned, and the plaintiff did not then object to the delay, but went into a trial. We regard this as a waiver of his objection to the previous postponement, if that were irregular.

But it is also excepted that the new trial was had by referees without a claim by either of the parties. If by this exception it is meant that such trial was had without any reneioed claim for referees, the exception is sustained by the record. The case stands thus: the defendant claimed a trial by freeholders ; it was granted and had; and, after their report, he claimed a new trial, which was granted. How was this new trial to be had ; by the justice or by freeholders'? The defendant had made his election as to the mode of trial; he had refused to submit the cause to the decision of the justice. Either party had the right so to take the trial from the justice, and after a party had made his election as to the mode of trial, any subsequent trial had on his application should be had in that mode, unless he waived his preference for that mode.

Rodney, for plaintiff in error. W. H. Rogers, for defendant.

The act of assembly says, that on all new trials the proceedings shall be the same as upon the original trial. We do not say that this extends to the mode of trial, or deprives a party of an election as to the mode of the second trial. If the first trial were by the justice, we do not know but that either party might on the second trial claim that it should be had by freeholders; or if the first were by freeholders, it may be that the party on whose application that mode was resorted to, might on the new trial expressly waive his claim for a trial by freeholders, and require that it should be had by the justice. All we say in this case is, that after a party has claimed and had a trial by freeholders, a subsequent trial may be had by the same mode without a renewed application for freeholders. The election of the party controls the mode of trial, and, once made, it continues as to all subsequent trials, unless it be waived. We do not, therefore, sustain this exception.

Neither do we think the last one sufficient to set aside this judgment. The judgment is in- effect the same with the award. The referees reported that the plaintiff had no cause of action. He was, therefore, nonsuited; and upon a nonsuit, the judgment against him for costs legally followed.

Judgment affirmed.