Better Home Furniture Co. of Winston-Salem v. Baron

Annotate this Case

91 S.E.2d 236 (1956)

243 N.C. 502

BETTER HOME FURNITURE COMPANY OF WINSTON-SALEM, Inc. v. Robert BARON.

No. 390.

Supreme Court of North Carolina.

February 3, 1956.

*237 W. Scott Buck, Winston-Salem, for appellant.

Clyde C. Randolph, Jr., Winston-Salem, for appellee.

*238 DENNY, Justice.

The first assignment of error is directed to the refusal of the court below to sustain the defendant's motion to dismiss the action on the ground that Chapter 1057 of the Session Laws of 1951 is invalid.

The pertinent sections of the above Act are as follows:

"Section 1. The procedure for adjudicating small claims in the Superior Court for Forsyth County shall be as herein set forth. A small claim is defined as an action in which the relief prayed for is a money judgment only and costs of court, in which the sum demanded (exclusive of interest and costs of court) by the plaintiff, defendant or other party does not exceed one thousand dollars ($1,000.00), and in which no jury trial is demanded; it may include the ancillary remedies of claim and delivery and attachment. "Sec. 2. The Clerk of the Superior Court for Forsyth County shall maintain a small claims docket. The clerk shall docket in the small claims docket any action in which the plaintiff in his complaint (or application for extension of time in which to file complaint) demands only a money judgment for a principal amount not in excess of one thousand dollars ($1,000.00), and does not demand a jury trial. No prosecution bond shall be demanded of plaintiff when instituting such action, and he shall be required to advance costs of the clerk's office only as prescribed in the next Section. "Sec. 3. In all small claims actions, the clerk shall require the advance payment of costs by plaintiff, as in other actions, but at one-half the usual amount. "Sec. 4. If any party to such action files an answer or other pleading in which affirmative relief is demanded for other than a money judgment not in excess of one thousand dollars ($1,000.00), the action shall be transferred to the regular civil issue docket; provided such party at the time of filing his pleading advances to the clerk the remaining one-half of court costs not advanced by plaintiff, and also files a prosecution bond for costs payable to the adverse party or parties in the sum of twenty-five dollars ($25.00). The bond, except as herein specified, shall be controlled by the provisions of General Statutes, Sec. 1-109. If such party fails to pay such additional advance costs or to file such prosecution bond, the portion of his pleading setting out his claim for affirmative relief shall be stricken on motion or ex mero motu. "Sec. 5. No jury trial shall be had in such small claims action, unless a party thereto shall demand a jury trial in the first pleading filed by him, and shall also comply with the provisions of Section 4 hereof as to advance costs and prosecution bond."

The Act contains no repealing clause and became effective upon ratification.

An examination of the foregoing Act reveals that its purpose is procedural in character and does not purport to relate to the establishment of a court inferior to the superior court within the purview of Article II, § 29 of the Constitution of North Carolina. This being so, we know of no constitutional provision prohibiting the General Assembly from enacting such legislation. Hence, Idol v. Street, 233 N.C. 730, 65 S.E.2d 313 and similar cases are not controlling. In fact, Article IV, § 12 of our State Constitution provides that the General Assembly may "regulate by law, when necessary, the methods of proceeding in the exercise of their powers, of all the courts below the Supreme Court, so far as the same may be done without conflict with other provisions of this Constitution." Horton v. Green, 104 N.C. 400, 10 S.E. 470; Carolina-Tennessee Power Co. v. Hiawassee River Power Co., 175 N.C. 668, 96 S.E. 99; Kornegay v. City of Goldsboro, 180 N.C. 441, 105 S.E. 187.

In Carolina-Tennessee Power Co. v. Hiawassee River Power Co., supra [175 N.C. 668, 96 S.E. 103], this Court quoted with *239 approval from Cooley on Constitutional Limitations (7th Ed.), at page 554, Note 2, where it is said: "`To make a statute a public law of general obligation, it is not necessary that it should be equally applicable to all parts of the state. All that is required is that it shall apply equally to all persons within the territorial limits described in the act'", citing State ex rel. Webster v. County Commissioners of Baltimore, 29 Md. 516; Pollock v. McClurken, 42 Ill. 370; Haskel v. City of Burlington, 30 Iowa 232; Unity v. Burrage, 103 U.S. 447, 26 L. Ed. 405.

The question of the propriety, wisdom, and expediency of legislation is exclusively a legislative matter and if an Act is otherwise unobjectionable, all that can be required of it is that it be general in its application to the class or locality to which it applies and that it be public in its character. Kornegay v. City of Goldsboro, supra; Newell v. Green, 169 N.C. 462, 86 S.E. 291; State v. Moore, 104 N.C. 714, 10 S.E. 143, 17 Am.St.Rep. 696.

The defendant also contends that Chapter 1057 of the General Session Laws of 1951 is invalid because in its caption it does not purport to comply with G.S. § 12-1, which provides that, "No act, which by its caption purports to be a public-local or private act, shall have the force and effect to repeal, alter or change the provisions of any public law, unless the caption of said public-local or private act shall make specific reference to the public law it attempts to repeal, alter or change."

In considering this identical question with respect to the above statute, in the case of State v. Norman, 237 N.C. 205, 74 S.E.2d 602, 607, this Court held that, "* * * one legislature cannot restrict or limit by statute the right of a succeeding legislature to exercise its constitutional power to legislate in its own way", citing 12 C.J., Constitutional Law, section 238, 16 C.J.S., Constitutional Law, § 107. See also Kornegay v. City of Goldsboro, supra; 82 C.J.S., Statutes, § 243b, p. 412 et seq.

The Act under consideration does not purport to repeal any general law, but merely to provide an additional or optional method of trial in the Superior Court in Forsyth County in cases where the relief sought is a money judgment only and costs of court, in which the sum demanded (exclusive of interest and costs of court) by the plaintiff, defendant or other party does not exceed $1,000, and in which no jury trial is demanded. Cases coming within this category may still be tried before a jury in Forsyth County in the same manner that they were triable before the enactment of this Act, where the plaintiff does not exercise his optional right to bring his action pursuant to the terms of this Act. Likewise, a defendant may demand and get a jury trial in an action brought pursuant to the provisions of the Act, if he so demands in the first pleading filed by him, and shall also comply with the provisions of Section 4 of the Act with respect to costs and prosecution bond. Hence, we hold that the defendant's first assignment of error is without merit.

We might note in passing that Chapter 1057 of the 1951 Session Laws has served as a model for Chapter 1337 of the 1955 Session Laws, a state-wide Act passed by the General Assembly containing provisions almost identical with those of Chapter 1057. The purpose of such legislation is to provide a method whereby small claims for a money judgment only may be tried expeditiously and without requiring the time and incurring the expense necessarily involved in a jury trial.

The defendant excepts to and assigns as error the refusal of the court below to grant him a jury trial as guaranteed by Amendment 7 to the Constitution of the United States, by Article I, § 19 of the Constitution of North Carolina, and by G.S. § 1-172.

Amendment 7 to the Constitution of the United States is not applicable to the states, St. Louis & S. F. R. Co. v. Brown, 241 U.S. 223, 36 S. Ct. 602, 60 L. Ed. 966, the provisions thereof apply only to the federal government. Pearson v. Yewdall, 95 U.S. 294, 24 L. Ed. 436; Southern Ry. Co. v. City of Durham, 266 U.S. 178, 45 S. Ct. 51, 69 L. Ed. 231; Durham v. Southern R. Co., *240 185 N.C. 240, 117 S.E. 17, 35 A.L.R. 1313. However, Rule 38 of the Federal Rules of Civil Procedure, 28 U.S.C.A., requires a party to demand a trial by jury if one is desired and to serve notice of the demand on the other parties in the manner set out in the Rule or such right will be deemed waived. United States Supreme Court Digest, Annotated, Court Rules, page 231.

Our State Constitution, in Article IV, § 13, provides, "In all issues of fact, joined in any court, the parties may waive the right to have the same determined by a jury; in which case the finding of the judge upon the facts shall have the force and effect of a verdict by a jury." But, ordinarily, the manner of such waiver is controlled by statute. See G.S. § 1-184; G.S. § 1-188; G.S. § 1-513, and Holmes Electric Co. v. Carolina Power & Light Co. 197 N.C. 766, 150 S.E. 621.

In an action brought pursuant to the provisions of G.S. § 1-513, where neither party moves for a jury trial on the issues raised by the pleadings, such issues may be determined by the court. Cannon v. Wiscassett Mills Co., 195 N.C. 119, 141 S.E. 344. Likewise, while a compulsory reference pursuant to the provisions of G.S. § 1-189 does not deprive either party of his constitutional right to a trial by jury on the issues of fact raised by the pleadings, nevertheless, "the party who would preserve the right to have the issues found by a jury must duly except to the order of reference, and, on the coming in of the referee's report, if it be adverse, he must file exceptions thereto in apt time, properly tender appropriate issues, and demand a jury trial on each of the issues thus tendered". Booker v. Town of Highlands, 198 N.C. 282, 151 S.E. 635-636; Marshville Cotton Mills v. Maslin, 200 N.C. 328, 156 S.E. 484; Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79.

It is said in 50 C.J.S., Juries, § 117, p. 832: "The constitutions in guaranteeing the right of trial by jury do not guarantee the right to litigate without expense, but merely protect the parties against the imposition of terms so unreasonable as materially to impair the right; and, except in the case of a party entitled to sue in forma pauperis, it is no infringement of the right to require as a condition of obtaining a jury trial the payment or deposit of a jury fee or docket fee, or the giving of a bond for costs." 31 Am.Jur., Jury, section 33, page 581; Annotation 32 A.L.R. 865; Knee v. Baltimore City Pass. Ry. Co., 87 Md. 623, 40 A. 890, 42 L.R.A. 363; Humphrey v. Eakley, 72 N.J.L. 424, 60 A. 1097, 5 Ann. Cas. 929, affirmed 74 N.J.L. 599, 65 A. 1118; Stephens v. Kasten, 383 Ill. 127, 48 N.E.2d 508; Reliance Auto Repair Co. v. Nugent, 159 Wis. 488, 149 N.W. 377, Ann.Cas.1917B, 307; State ex rel. Murphy-McDonald Builders' Supply Co. v. Parks, Fla.1950, 43 So. 2d 347; Walker v. Parkway Cabs, Inc., 50 Ohio App. 250, 197 N.E. 921.

We hold that the provisions in the Act under consideration, to the effect that no jury trial shall be had in an action instituted pursuant thereto, unless a demand is made therefor in the manner set out in the Act, and the costs advanced and the prosecution bond filed as required therein, are not unreasonable provisions and will be upheld.

The defendant having been represented by competent counsel and having filed an answer without demanding a jury trial, as required in this particular type of action, if one is so desired, the right thereto will be deemed to have been waived. "Ordinarily, an attorney, by virtue of his employment as such, has control and management of the suit in matters of procedure * *." Harrington v. Buchanan, 222 N.C. 698, 24 S.E.2d 534, 536; Coker v. Coker, 224 N.C. 450, 31 S.E.2d 364; 7 C.J.S., Attorney and Client, § 100c, p. 922 et seq. This assignment of error is overruled.

The defendant's fourth assignment of error is based on his exception to the refusal of the court to grant him a continuance to a subsequent term. In the recent case of State v. Ipock, 242 N.C. 119, 86 S.E.2d 798, 800, Higgins, J., in speaking for the Court, said: "Granting or denying a motion for continuance rests in the sound discretion of the presiding judge and his decision will not be disturbed on appeal, except for abuse of discretion or a showing *241 the defendant has been deprived of a fair trial", citing State v. Birchfield, 235 N.C. 410, 70 S.E.2d 5; State v. Hackney, 240 N.C. 230, 81 S.E.2d 778; State v. Culberson, 228 N.C. 615, 46 S.E.2d 647; State v. Gibson, 229 N.C. 497, 50 S.E.2d 520.

No abuse of discretion has been shown on the present record, or a showing that the defendant has been deprived of a fair trial.

The judgment of the court below is affirmed.

Affirmed.