Judges: BUFORD, J.
Attorneys: M.S. McGregor, for Plaintiff in Error;
Murray Sams, for Defendant in Error.
Filed: Jan. 04, 1937
Latest Update: Mar. 02, 2020
Summary: Proceedings were instituted in County Judge's Court by a landlord to evict a tenant under Sections 3534-3542 R.G.S., 5398-5406 C.G.L., known as the Landlord and Tenant Statutes. The defendant made request for trial by jury. The respondent County Judge denied defendant's request, except on condition that defendant deposit in the County Judge's Court a sufficient sum of money to pay such jury its legal fees for serving as such jury and the defendant declined to deposit such sum of money, or any su
Summary: Proceedings were instituted in County Judge's Court by a landlord to evict a tenant under Sections 3534-3542 R.G.S., 5398-5406 C.G.L., known as the Landlord and Tenant Statutes. The defendant made request for trial by jury. The respondent County Judge denied defendant's request, except on condition that defendant deposit in the County Judge's Court a sufficient sum of money to pay such jury its legal fees for serving as such jury and the defendant declined to deposit such sum of money, or any sum..
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I think the trial court was correct in granting the motion to quash the rule nisi. Prohibition was not the proper remedy. See Peacock v. Miller, 123 Fla. 97, 166 So. 212, and the numerous Florida decisions therein cited. Also, I think the opinion is too broad in its pronouncements. It would have been sufficient for the purpose of deciding this case, even if plaintiff in error had pursued the proper remedy in the Circuit Court to have called attention to the fact that Section 5403 C.G.L. does not authorize the County Judge, when a jury is demanded, to require the demanding party to make a deposit to cover the cost which would thereby be entailed. But I believe the statute could have made this requirement in a case of this kind without violating the Constitution. The cardinal principal is that the essential features of trial by jury as known to the common law must be preserved. See 16 R.C.L. 196-199, 207; 35 C.J. 148, 186; Capital Traction Co. v. Hof, 174 U.S. 1, 43 L. Ed. 873; Maxwell v. Dow,176 U.S. 581, 44 L. Ed. 597.
