Chapter 7

PROCEEDINGS IN A JUSTICE COURT.

I. IN ORDINARY CIVIL ACTIONS.

Definitions.--A _Civil Action_ is one having for its object the protection or enforcement of a private right or the securing of compensation for an infraction thereof. For instance a suit brought to secure possession of a horse, or to secure damages for a trespass is a civil action. The person bringing the action is called the _plaintiff_; the one against whom it is brought, the _defendant_. The plaintiff and the defendant are called the _parties_ to the action.

_Jurisdiction._--A justice of the peace has jurisdiction within the county in most civil actions when the amount in controversy does not exceed a certain sum, usually one hundred dollars. (See p. 296.)

PRELIMINARY TO TRIAL.

_Complaint and Summons._--In bringing a civil action, the plaintiff or his agent appears before the justice of the peace and files a Complaint. In this he states the cause of the action. The justice then issues a Summons. This is an order to a sheriff or constable commanding him to notify the defendant to appear before the justice at a certain time and place to make answer to the plaintiff's demands. (Form on p. 277.)

Sometimes on bringing an action or during its progress a writ of attachment is obtained. To secure this writ, the creditor must make affidavit to the fact of the debt, and that the debtor is disposing or preparing to dispose of his property with intent to defraud him, or that the debtor is himself not reachable, because hiding or because of non-residence. In addition, the creditor must give a bond for the costs of the suit, and for any damages sustained by the defendant. The justice then issues the writ, which commands the sheriff or constable to take possession of and hold sufficient goods of the debtor and summon him as defendant in the suit.

Another writ sometimes used is the writ of replevin. To secure this writ, the plaintiff must make affidavit that the defendant is in wrongful possession of certain (described) personal property belonging to the plaintiff. The plaintiff then gives a bond for the costs of the suit and for the return of the property in case he fails to secure judgment, and for the payment of damages if the return of the property cannot be enforced, and the justice issues the writ. This commands the sheriff or constable to take the property described and turn it over to the plaintiff, and to summon the defendant as before.

Pleadings.--The next step in the process, in any of the cases, is the filing of an Answer by the defendant, in which he states the grounds of his defense. The complaint of the plaintiff and the answer of the defendant constitute what are called the pleadings. [Footnote: For a more extensive discussion of pleadings, see chapter VII.; or Dole, pp. 30-42.] If the answer contains a counter-claim, the plaintiff is entitled to a further pleading called the Reply. The pleadings contain simply a statement of the facts upon which the parties rely in support of their case. No evidence, inference or argument is permitted in them.

Issue.--It is a principle of pleading that "everything not denied is presumed to be admitted." The fact or facts asserted by one party and denied by the other constitute the issue. If the defendant does not make answer on or before the day appointed in the summons and does not appear on that day, judgment may be rendered against him. If the plaintiff fail to appear, he loses the suit and has to pay the costs. For sufficient cause either party may have the suit adjourned or postponed for a short time.

Jury.--On demand of either party a jury must be impaneled. The jury usually consists of twelve persons, but by consent of the parties the number may be less. The jury is impaneled as follows: The justice directs the sheriff or constable to make a list of twenty-four inhabitants of the county qualified to serve as jurors in the district court, or of eighteen if the jury is to consist of six persons. Each party may then strike out six of the names. The justice then issues a venire [Footnote: For forms, see page 280.] to the sheriff or a constable, directing him to summon the persons whose names remain on the list to act as jurors.

Witnesses.--If any of the witnesses should be unwilling to come, the justice issues a subpoena [Footnote: For forms, see page 279.] commanding them to appear. The subpoena may contain any number of names and may be served by any one. It is "served" by reading it to the person named therein, or by delivering a copy of it to him. A witness, however, is not bound to come unless paid mileage and one day's service in advance.

THE TRIAL.

Opening Statement.--The usual procedure is as follows: After the jury has been sworn, the plaintiff's attorney reads the complaint and makes an opening statement of the facts which he expects to prove. The purpose of the opening statement is to present the salient points of the case, so that the importance and bearing of the testimony may be readily seen by the jury.

Evidence.--The evidence [Footnote: The most important Rules of Evidence are given in chapter VII.] for the plaintiff is then introduced. Each witness, after being duly sworn, gives his testimony by answering the questions of counsel. After the direct examination by the plaintiff's attorney, the witness may be cross-examined by the attorney for the defendant. When the evidence for the plaintiff is all in, the defendant's attorney makes his opening statement, and then the witnesses for the defense are examined. The direct examination is now, of course, conducted by the counsel for the defendant, and the cross-examination by opposing counsel. When all the evidence for the defense has been introduced, the plaintiff may offer evidence in "rebuttal," that is, to contradict or disprove new matter adduced by the defense. And the defendant may then introduce evidence to refute matter first brought out by the rebuttal.

Argument.--The case is now ready for "argument." One attorney on each side addresses the jury. Each tries to show that the evidence adduced has proved the facts alleged in his pleadings, and each asks for a decision in favor of his client. Usually the side upon which rests the burden of proof has the closing argument.

Counsel must confine themselves to the law, the admitted facts and the evidence.

Verdict.--The jury then retire in care of an officer to a room set apart for their use. Here they deliberate in secret. If after a reasonable time they cannot agree, they are discharged, and the case stands as if no trial had taken place. But if they agree they return to the court room and render their verdict. This is given by the foreman, and is assented to by the rest.

Judgment.--After the verdict, the justice enters judgment in accordance therewith. Judgment may include certain sums of money allowed to the successful party in part compensation of his expenses. Such allowances and certain court expenses are called "the costs."

AFTER THE TRIAL.

Appeal.--If the defeated party feels that he has not been justly dealt with, he may ask for a new trial. If this be refused he may appeal his case to a higher court. He must make affidavit that the appeal is not taken for the purpose of delay, and must give bonds to cover the judgment and the costs of appeal. The higher court affirms or reverses the judgment, in the latter case granting a new trial.

Sometimes the case is tried anew in the higher court, just as if there had been no trial in the justice court.

Execution.--If no appeal is taken the defeated party may "satisfy" the judgment, that is, pay to the justice the sum specified therein. If at the expiration of the time allowed for appeal the judgment remains unsatisfied, the justice may issue an execution [Footnote: For forms, see Appendix, pp. 282-3.] against the property of the debtor.

II. IN CRIMINAL ACTIONS.

_Jurisdiction._

Justices of the peace have jurisdiction throughout their respective counties, as follows:

1. _To try_ charges where the punishment prescribed by law does not exceed a fine of one hundred dollars or imprisonment for three months. [Footnote: The extent of this jurisdiction varies somewhat in different states.]

2. _To examine_ persons charged with crimes greater than those specified above, and to dismiss them or hold them for trial in a court having jurisdiction, as the facts seem to warrant.

3. _To prevent_ crimes, by requiring reckless persons to give security to keep the peace.

PROCEEDINGS IN CRIMINAL TRIAL.

Preliminary.

Complaint.--If a crime has been committed, the sufferer, or any one else, may appear before the justice of the peace and make complaint, under oath, specifying the nature of the crime, the time of its commission, and the name of the person believed to have perpetrated it, and requesting that he be apprehended for trial.

Warrant.--If upon careful examination of the complainant and any witnesses whom he may bring, it appears that the offense has probably been committed, the justice issues a warrant, reciting the substance of the complaint, and commanding an officer to arrest the accused and produce him for trial.

Return.--The officer arrests the accused, brings him before the justice, and makes a return of the warrant. The return is a statement on the back of the warrant telling how its commands have been executed. (See p. 283)

Bail.--The accused is entitled to a speedy trial. But if for good cause it seems best to postpone it, the accused may be released from custody upon giving sufficient bail for his appearance at the time fixed for trial. If he cannot furnish bail, he is committed to jail or left in charge of the officer.

Subpoena.--One good reason for postponing a trial is to enable the parties to secure witnesses. To this end, the justice issues subpoenas. But in this case the witnesses must come without the tender of the fee.

_The Trial._

Arraignment.--The first step in the trial proper is to inform the defendant of the nature of the crime with which he is charged. The accusation, as stated in the warrant, is distinctly read to him by the justice, and he is required to plead thereto. If he pleads guilty, conviction and sentence may follow at once. If he pleads not guilty, the trial proceeds.

Trial.--After the joining of issue, and before the court proceeds to the examination of the merits of the case, a jury is impaneled as in a civil action. A jury may be waived by the defendant. Then follow the taking of the testimony, the arguments of counsel, the consideration and verdict by the jury. The defendant is then discharged if not guilty, or sentenced if found guilty. The penalty depends, of course, upon the nature of the offense.

PROCEEDINGS IN EXAMINATION.

Need of Examination.--Over crimes punishable by fine greater than $100 or imprisonment for more than three months, a justice of the peace usually has no jurisdiction of trial. The action must be tried in the district court, on the indictment of a grand jury. But in the meantime the perpetrator of a crime might escape. To prevent this, the accused may be arrested and examined by a justice of the peace, to ascertain whether or not there are sufficient grounds for holding him for trial.

Proceedings.--The preliminary proceedings are precisely like those in case of a trial. Upon complaint duly made a warrant is issued, and the accused is arrested and brought before the justice. In the presence of the accused, the magistrate examines the complainant and witnesses in support of the prosecution, upon oath, "in relation to any matter connected with such charge which may be deemed pertinent."

Rights of Accused.--The accused has a right to have witnesses in his behalf, and to have the aid of counsel, who may cross-examine the witnesses for the prosecution.

The Result.--If it appears upon examination that the accused is innocent of the crime, he is discharged. If his guilt seems probable, he is held to await the action of the grand jury. In the case of some offenses bail may be accepted. But if no suitable bail is offered, or if the offense is not bailable, the accused is committed to jail. Material witnesses for the prosecution may be required to give bonds for their appearance at the trial, or in default thereof may be committed to jail.

Reports.--The justice makes a report of the proceedings in the examination, and files it with the clerk of the court before which the accused is bound to appear for trial.

PROCEEDINGS FOR PREVENTING CRIME.

Prefatory.--But it is better to prevent crime than to punish it. Indeed, one reason for punishing wrongdoers is that the fear of punishment may deter people from committing crime.

Proceedings.--As a conservator of the public peace, then, a justice may require persons to give bonds for good behavior. The preliminary proceedings are similar to those in the case of a trial--the complaint, warrant and return. But the complainant simply alleges upon oath, that a crime against his person or property has been threatened. The examination is conducted as in case of a criminal offense.

Result.--If upon examination there appears reason to fear that the crime will be committed by the party complained of, he shall be required to enter into recognizance to keep the peace, failing in which he shall be committed to jail for the time to be covered by the surety, said time not to exceed six months.

REMARKS ON CRIMINAL TRIALS.

The care for the rights of the accused is based upon the principle in our law, that every man shall be held innocent till _proved_ guilty. Another principle is that a person accused of crime _cannot be tried in his absence._ The purpose of arresting him is to secure his _presence_ at the trial. If he can guarantee this by bail he is set at liberty, otherwise he is confined in jail. (See p. 231.)

_Pertinent Questions._

Are the justices and constables town, county or state officers? How is it known at the county seat who the justices and constables in each town are? Define docket, summons, warrant, pleading, subpoena, crime, felony, misdemeanor, venire, costs, execution, recognizance. Why are there two justices in each town? What is meant by "change of venue?" How is an oath administered in court? What persons may not serve as witnesses? If a criminal should make confession of the crime to his lawyer, could the lawyer be subpoenaed as a witness on the trial? Name some things "exempt from execution" in this state. What is to hinder a bitter enemy of yours, if you have one, from having you committed to prison. Can a _civil_ suit proceed in the absence of the defendant?

_Practical Work._

Assume that John Smith bought from Reuben White a cow, the price agreed upon being $30; that Smith refuses to pay, and White sues him. Write up all the papers in the case, make proper entries in the docket, assessing costs, etc.