Carpenter v. Jones

GAROUTTE, J. This is an application for a writ of mandate to he directed to Edward I. Jones, judge of the superior court of the county of San Joaquin, requiring him to set a certain cause pending in said court for trial. The facts upon which the application is based are briefly these: One Bailey was the executor of the estate of C. W. Carpenter, deceased. This petitioner and others filed a petition and contest asking that the probate of the will of deceased be set aside, and that Bailey’s letters testamentary be annulled and vacated. Upon the issues thus made the contestants demanded a jury trial, and upon such trial the jury failed to agree upon a verdict. These contestants thereupon demanded that the cause be placed upon the trial calendar to be set for a second trial. This application the court refused to grant until contestants paid the jury fees of the previous trial, and also the reporter’s fees accruing at that trial. No law has been placed before us in any way justifying the court’s action as based upon "a nonpayment of the reporter’s fees, and under the circumstances we assume the action of the court to that extent unjustified.

[364]To support the action of the court as to the jurors’ fees, the respondent relies upon an act of the legislature found in the statutes of 1871-72, page 188. That act, among other matters, provides: “If in any trial in a civil case the jury be for any •cause discharged without finding a verdict, the fees of the jury shall be paid by the party who demanded the jury, but may be recovered as costs if he afterward obtain judgment; and until they are paid no further proceedings shall be allowed in the action.” It is contended upon the part of the petitioner that this act of the legislature was repealed ipso facto by the adoption of the codes. To support this contention that section of the various codes is invoked which provides: “Ho statute, law, or rule is continued in force because it is consistent with the provisions of this code on the same subject; but in all cases provided for by this code all statutes, laws, and rules heretofore in force in this state, whether consistent or not with the provisions of this code, unless expressly continued in force by it, are repealed or abrogated.” (Civ. Code, sec. 20.) There is no legislation in any of the codes bearing upon the matter covered by that portion of the act above quoted from the statutes of 1871-72. And, there being an entire absence of legislation in the codes -upon the subject, that part of the act of 1871-72 is not repealed by the above law, invoked to accomplish that purpose. By that general provision the codes only repealed existing statutes “in all cases provided for by .this code.” The legislation before us •embraces a “case” not provided for by “this code.”