CHAPTER IX. THE TRIAL. SECTION 47. THE PROCEEDINGS IN AN ACTION. The various steps in the proceedings in an action. are as follows: (a) The process. (b) The appearance of the defendant. (c) The trial. (d) The verdict. (e) The judgment. SECTION 48. THE PROCESS. Process is any writ or other judicial means by which a defendant is called or brought into court to answer the plaintiff's declaration. The common forms of process are: (a) The writ of summons, which is a writ commanding the sheriff, or other official, to summon the defendant to appear in court on a certain day to answer the plaintiff's declaration. (b) A capias ad respondendum is a writ commanding the sheriff to arrest the defendant and to have him before the court on a certain day, to answer the plaintiff's declaration. This writ is generally allowed only in cases of fraud, breach of trust, or other similar wrong.1 (c) A writ of attachment. SECTION 49. ATTACHMENT. A writ of attachment is a writ which commands the seizure of the property of the defendant to satisfy 1 Consult statutes of several states. the demand of the plaintiff. This writ to attach or measure process is an extraordinary power, unknown to the common law, and only created by statute. In the absence of statutory provisions prescribing a more liberal rule, statutes providing for attachments are to be strictly construed. In Moore vs. Hamilton, the Supreme Court of Illinois, discussing the then existing Illinois attachment law, said: "The statute only allows the remedy by attachment to recover indebtedness growing out of contracts, expressed or implied, or ascertained and liquidated by a judgment. An original attachment cannot be sued out for the purpose of recovering damages for a tort. By the 30th section, an attachment may be sued out in aid of an action of trespass. If the attachment thus instituted could be carried on without reference to the pending action, the effect would be to permit the plaintiff to recover a judgment in attachment against a non-resident for a personal injury. This would allow him to do indirectly by this kind of proceeding, what he cannot do directly by an original proceeding. The remedies by attachment are in derogation of the common law, and ought not to be extended by implication." In all the states of the country, outside of the New England states, it is specially provided by statute that no attachment shall be issued, except upon the filing of an affidavit alleging the necessary ground for such attachment. A writ of attachment must always be accompanied by a summons, unless the suit is brought against a non-resident defendant who has property within the Elliott vs. Jackson, 3 Wis., 649; 7 Ill., 429. Shirley vs. Owners of Steamer, jurisdiction of the court, before which the suit is brought. In such case the attachment of the property gives the court a limited jurisdiction, and a judgment in rem may be issued, but not one in personam. An attachment is ipso facto dissolved by a final judgment for the defendant." SECTION 50. JURISDICTION OF COURT. The question of the territorial jurisdiction of a court is thus summarized: "In order to give jurisdiction the action must be brought where the defendant or one of the defendants resides or may be found, or where he has property, and a writ of attachment issued from the wrong county will be void. But jurisdiction over a defendant having once been properly obtained, writs may issue against him to other counties where he has property, or against co-defendants in the counties of their residence or where they have property.' 9978 SECTION 51. APPEARANCE. "The appearance of the defendant is the act or proceeding by which he is brought or places himself before the court, in order to answer the action. It may be either: (a) Voluntary; or (b) Involuntary, when the defendant is compelled to appear by special process. If voluntary, it may be (a) General. (b) Special." Snydam vs. Higgeford, 23 Pick., 465; Harrow vs. Lyon, 3 Greene, 157. Carter vs. Arbuthnot, 62 Mo., 582. • Robertson vs. Roberts, 1 A. K. Marsh (Ky.), 247, citing Lanier vs. Grant, Hard. (Ky.), 450. ' Read vs. Kirkwood, 19 Ark., 332. Ency. of Pleading & Practice, Vol. 3, page 53. A general appearance is one where the defendant appears to contest the merits of the case. A special appearance is one where the defendant appears for some special purpose only, as to contest the jurisdiction of the court. SECTION 52. DEFAULT OF DEFENDANT. If the defendant fails to put in an appearance after having been properly served he will be defaulted. It is generally necessary in such cases, however, for the plaintiff to prove up the amount of his damages." SECTION 53. THE PLEADINGS. After the appearance of the defendant comes the defendant's plea (or demurrer), and the other pleadings until the case is at issue. The various pleadings of the two parties have been already discussed. SECTION 54. THE TRIAL. The case having been brought to an issue by means of the pleadings, the next step is the trial of such issue. In general, issues of law are determined by the judge, and issues of fact by the jury. A jury trial, however, can in most cases be waived by the parties, 10 and issues of fact as well as of law tried by the court. The case where no proof is required before judgment when the defendant is defaulted is regulated in each state by the statutes and rules of court. 10 "It may be premised that the right of trial by jury may be waived in civil cases, but, according to the better opinion, not in criminal cases, though there is some opinion to the contrary. A statute authorizing such a waiver in criminal cases has been held not unconstitutional. This may be done, under various constitutions, statutes and judicial holdings, by not demanding a jury; by making no objection (Baird vs. Mayor, 74 N. Y., 382), or consenting (Grant vs. Reese, 72 N. C., 72) to an order of reference, by failing to advance the jury fee prescribed by statute (Venine vs. Archibald, 3 Colo., 163); by SECTION 55. THE JURY. The first step in the trial of a case is the securing of a jury. Where (as in the United States Constitution) a jury trial is guaranteed without any qualification, a common law jury of twelve men is meant," and trial by a jury consisting of a greater or less number will be a violation of this constitutional right. The same is true if a verdict is allowed to be rendered otherwise than by a unanimous vote. The selecting of the jury is thus described by Mr. Thompson in his recent work: "At common law no such thing was known as the preparation of a list of persons who were liable to be summoned to serve as jurors at a succeeding term of court; but the uncontrolled discretion was vested in the sheriff, in the coroner, or in officials called elisors, of summoning such 'good and lawful men' as they might choose under the command of the writ consent entered of record (Desche vs. Gies, 56 Md., 135), by a stipulation in writing signed by the parties and filed with the clerk that the case shall be tried by the court (Love vs. Hall, 76 Ind., 326), by failing to appear at the trial (Leahy vs. Dunlap, 6 Colo., 552); by not filing a notice under a statute of a desire at the trial (Bailey vs. Joy, 132 Mass., 356); by waiving a jury orally in open court (Gregory vs. Lincoln, 13 Neb., 352); by demanding a jury without specifying the issues to be tried by the jury where there are issues triable by the court (Greenleaf vs. Egan, 30 Minn., 316); by failing to take an appeal from the decision of a board of supervisors to the Circuit Court (Tharp VS. Witham, 65 Ia., 556). The prevailing opinion seems to be that a waiver of a jury at one term will not estop the party from claiming it at a subsequent term (Cross vs. State, 78 Ala., 430), or after a new trial has been granted (State vs. Touchet, 33 La. Ann., 1154); though there are holdings, influenced by statute, to the effect that a waiver once made is a waiver for all subsequent trials. (Heacock vs. Lubukee, 108 Ill., 641.) It has been held that, although in a case regularly triable by jury the parties waive a jury, the court is not bound by the waiver, but may refuse to perform the office of a jury, without assigning any reason therefor. (Biggs vs. Lloyd, 11 Pac. Rep., 831)." Thompson on Trials, Sec. 2. "Thompson vs. Utah, 170 U. S., 349; Maxwell vs. Dow, 176 U. S., 586. |