Lanahan v. Heaver

Fowler, J., delivered the opinion of the Court. The appellee sued the appellant in the Superior Court of Baltimore City, and the case being ready for trial, it was, as appears by the docket entries, on the “2nd April, 1892, submitted by agreement of counsel to the Court for determination without the intervention of a jury.” The trial proceeded before the late Judge Stewart, one of the Judges of the Supreme Bench of Baltimore City, who was then sitting in the Superior Court, and the case was fully argued by counsel representing both parties. Judge Stewart died in August, 1892, no decision of the case having been rendered by him. Subsequently the papers were returned to the Superior Court by Judge Stewart’s legal representatives.

On the 21st January, 1893, the plaintiff moved “to strike out the submission of the case to the Court without the intervention of a jury, because the late Judge Stewart, before whom the case was tried, died before its determination, and that the case be set down for trial at an early day in the usual way before Court and jury.” This motion was heard and an order was passed striking out the agreement to try the case without the aid of a jury. From this order the defendant has apjsealed. The Constitution of Maryland, Article 4, section 8, provides that “the parties to any cause may submit the same to the Court for determination without the aid of a jury.” It is apparent, therefore, that under this familiar provision of our Constitution a jury may be dispensed with by agreement of the parties in civil cases, and the only question before us is whether this agreement is binding upon both parties to it, and, if so, how long. We say civil cases, because the question as to what effect such an agreement would have in a criminal proceeding is not now before us. ⁶⁰⁹ In order to avoid the conclusion which inevitably follows if what the parties here did be regarded as an agreement or contract, it was suggested that there is nothing contractual about it, and that it amounts to nothing more than a waiver.

A number of authorities holding that a party has a right to withdraw his waiver of a jury trial were relied on to justify the action of the Court below. Without examining these cases in detail, it is sufficient to say that some of them are based upon statutes peculiar to the State in which such decisions were rendered, and others upon the ground that a mere waiver is not binding. But we place our conclusion on what we think is the plain meaning of the provision of our own Constitution upon this subject — namely, that the parties to a civil cause must agree thereto before the aid of a jury can be dispensed with. We believe the universal practice of the State is in accord with this construction, for it has never been suggested that either party in a civil case can, without the consent of the other, avoid a jury trial.

And in the case at bar it appears by the docket entries that the jury was dispensed with by agreement. As said by the late Justice Miller, in Wheeler vs. New Brunswick, (See., R. R. Co., 115 U. S., 34 : To annul or set aside this contract fairly made, requires the consent of both parties to it, as it did to make it.” But is the agreement a valid one? It is urged that there is no consideration to support it. We think, however, the consideration is ample.

Each party promised or agreed with the other that he would relinquish his constitutional right to a jury trial, and the forbearance to exercise a legal right has always been held to be a sufficient consideration to support a contract. One of the most frequent illustrations of this kind of consideration being a forbearance to sue. ⁶¹⁰ But the further contention of the appellee is, that although it be admitted that the submission of the case constitutes a valid agreement, yet it must be construed as an agreement to try the case before Judge Stewart, who