Kain v. Delano.

prescribed by law, is a substantial right, and it does not rest in the discretion of the court to deprive a party of that right, or to compel him to submit to the trial of an action, except in the manner and in the forum authorized by law. The law only authorizes a compulsory reference of a single class of cases, viz: those actions in which the trial of an issue of facts will require the examination of a long account; and when not referable under the statute, they must be tried either by a jury or by the court, unless the parties assent to some other form of trial (Code of Pro., §§ 253, 254, 270, 271).

The Constitution secures to parties a trial by jury in certain cases, and neither the court nor the legislature can deprive them of that right (Const., Art. 1, § 2; Townsend v. Hendrickson, recently decided by this court); and no action can be referred for trial without the consent of the parties, except as authorized by statute.

This action is upon contract, and belongs to that class which may be referred, if within the terms of the statute; and the trial will require the examination of a long account "upon either side." If there was evidence upon which the court below could have decided that the trial would involve such examination, this court would not review the decision; that is, it would not sit in judgment upon a question of fact, passed upon by the court below, upon competent evidence fairly calling for the exercise of the judgment of that court. But there is no evidence bringing this case within the statute, or showing that the trial can involve the examination of a long account "upon either side."

The plaintiff in his affidavit states generally, that the trial "will require the examination of a long account, involving very numerous items of charges and credits, amounting to many thousand dollars, and extending over several years," but does not state how or why this is so, and this statement is very circumstantially

Kain v. Delano.

A

and fully denied in the affidavit of the defendants. reference to the pleadings discloses the fact that the claim of the plaintiff is upon a written contract, and for the recovery of a single and specified sum of money; that is, the plaintiff's claim consists of a single item.

The defendants do not allege or set up any counterclaim, or any defense, resting upon or calling for the examination of an account between the parties to the action. As new matter, there is set up by way of defense, a single transaction, viz: an agreement between the plaintiff's assignor, with the knowledge and assent of the plaintiff, and the Knoxville & Kentucky Railroad Co., which, it is claimed, exempts the defendants from their liability upon the alleged contract, which is the foundation of the action. In other words, a new agreement is alleged in bar of the action, and the defense, if it can be sustained, rests upon the alleged agreement, and although it was suggested, it is not easy to see how the examination of the accounts and dealings between Powell, Green & Co. and the railroad company, if there are such accounts, can be material or relevant to the issue made by the answer.

The case shows that under the pleadings there are no long accounts between the parties to be examined, and it is not shown that there are long accounts between other parties, the examination of which can be at all pertinent to any issue in the action. As the accounts which it is suggested may be involved are not between the parties to the action, and not the immediate object of the suit or ground of defense, the moving party should, in any event, have shown how, and in what way, the examination of them will become necessary upon the trial. But the statute does not authorize a compulsory reference when the accounts will arise and come in question collaterally. They must be the immediate object of the suit or the ground of the defense, that is, directly, and not collaterally or incidentally in

Lake v. Kels.

volved (Code, § 271; Laws of 1801, ch. 90, § 2; 1 K. & R., 347; Todd v. Hobson, 3 Johns. Cas., 517).

The order must be reversed and the motion for a reference denied, with costs.

GROVER and PECKHAM, JJ., dissented

Order reversed and motion denied, with costs.

LAKE against KELS.

Schuyler County Court, October, 1869.

APPEAL FROM JUSTICE'S JUDGMENT.-APPEARANCE.

WAIVER.

Under section 354 of the Code of Procedure, service of notice of appeal from a justice's judgment on the attorney or agent of the respondent, on account of the non-residence or absence of the respondent, is only allowed where the attorney or agent is a resident of the county.

It seems, that personal service on the respondent, though he be a nonresident, is sufficient.

In a case in which, by section 352, a new trial must be had in the appellate court, an appeal taken without giving the security required by section 355, must be dismissed, unless the court in its discretion receives the security nunc pro tunc.

If a new trial is not required, the omission to give security does not affect the validity of the appeal, but only the stay.

Moving to dismiss an appeal on the ground of want of jurisdiction,

the notice being signed generally "attorney for plaintiff and respondent" is not such an appearance as waives the objection to the jurisdiction.

*This decision, on points not unfrequently raised in the county courts, has been, I am informed, followed in several subsequent cases in other counties than the one where it was made.

Lake v.

Kels.

Motion to dismiss an appeal for want of jurisdic

tion.

James H. Lake, plaintiff and respondent, sued Wilson Kels, defendant and appellant, in a justice's court; and having obtained the judgment from which the appeal was taken, he now moved in the county court to dismiss the appeal. The facts are stated in the opinion.

M. J. Sunderlin, for the motion.

J. McGuire, opposed.

BENJ. W. WOODWARD, County J.-On issue joined between the parties, a trial was had before H. C. VANDUZER, Esq., a justice of the peace in and for Schuyler county, and on August 30, 1869, judgment was duly rendered in favor of the plaintiff and against the defendant, for one hundred and fifty-seven dollars and ninety-one cents, damages and costs.

Within twenty days thereafter the defendant served on said justice a notice of appeal from said judgment to this court, but no undertaking on appeal was, at that time or subsequently, served or filed in the case.

The plaintiff was a non-resident, residing in Steuben county, and was not served with said notice. M. J. Sunderlin, Esq., who is and was a resident of Yates county, appeared as attorney for the plaintiff on the trial before the justice, and within twenty days after judgment rendered, was also served with a copy of the notice of appeal; no copy of the notice was either left with the clerk of Schuyler county, or filed in his office.

The respondent now moves to dismiss the appeal, on the ground that this court has no jurisdiction to try the action; the motion being the only step taken by the respondent in connection with the appeal. The notice

Lake v. Kels.

of motion served on the appellant is signed, “M. J. Sunderlin, attorney for plaintiff and respondent."

It is urged in opposition to this motion that, if there was any irregularity in bringing the appeal, it was a mere irregularity, which was cured by the appearance of the respondent in the manner above stated.

I. Section 354 of the Code of Procedure prescribes how and on whom the notice of appeal shall be served in order to constitute a valid appeal to the county court, and it names two instances only in which service of such notice on the attorney or agent of the respondent is permitted, viz: 1. Where the respondent is a nonresident of the county. 2. Where he cannot, after due diligence, be found in the county. And in these instances, only, when such attorney or agent is a resident of the county in which the cause was tried. Hence the service of the notice of appeal in this case was insufficient. It may be proper, however, to observe in this connection, that the provision of section 354 of the Code, allowing the service to be made by filing the notice with the clerk of the appellate court, where the respondent is a non-resident, is permissive only, whence it would seem that the intention of the section is to leave it to the option of the appellant, whether he will serve it on the respondent personally, regardless of his place of residence; or, in case he is a non-resident, accept the privilege granted by such permissive clause. One or the other must be complied with; and it seems that a personal service on the respondent, though a non-resident, is sufficient. The evident reason of the section is, that the appellant shall not be compelled to go outside of the county in order to perfect his appeal.

II. Section 355 of the Code requires that the appellant, where, by section 352 he is entitled to a new trial in the appellate court, shall, at the time of taking the appeal, give the security as provided in section 356. The filing or the omission to file such security, there