Gillespie v. Benson

Citations

• 18 Cal. 409
• 1861 Cal. LEXIS 214

Syllabus

<p>The failure of either party to appear on the trial of a civil case operates as a consent on his part that the issue be tried by the Court without a jury. But such failure to appear does not authorize the trial to be had by a jury of less than twelve persons.</p> <p>A less number than twelve persons does not constitute a legal jury, without the consent of the adverse party; and such consent must be express, and entered at the time in the minutes of the Court, and cannot be inferred.from the mere • absence of the party.</p> <p>Plaintiff sued for four hundred and sixty dollars for goods sold -and, delivered. Defendants plead an offset, and had verdict and judgment for two hundred dollars, with forty-four dollars costs. Plaintiff appeals : Held, that the Supreme Court has jurisdiction; that the “amount in dispute,” within section four, article six of the Constitution, is not determined, where plaintiff is appellant, by the amount of the offset pleaded by defendants or found by a jury.; that in such case the amount claimed by the complaint, the action being for a ' debt or damages only, is to be considered in determining whether this Court : has appellate jurisdiction in the case. ’</p>