The morning call., 1892-08-18
4 JURY TRIAL GRANTED.
First Blood for Oakland i'm the
Waterfront Suit.
The Grabbers Must Face a Jury. Of Their
Peers-The Monopoly Lawyers Interpose
a Fresh Objection.
There viii be a Jury trial.

There viii be Jury trial
The Judges ruled so yesterday, but i'm
mediately afterward another obstacle to
sUrmount was presented by the attorneys
for the water front ompany.
"Your Honor" said the bland Hotchkiss,
after the ruling had been given, I'VE ask
that this court first hear the suit in equity
and decide il. and that then the jury be
called 10 hear the evidence concerning the
right OF present possession"
Defeated in their first maneuver, the
plaintiffs had boldly begun another. and
the defendants and the court we're not ex
peciing it.
TIE NEW OBJECTION.
The question was not decided, either.
The second day passed, and the trial had
NOT actually begun. The new point was
made just before noon, and there was no
more court that day. The Judges retired
TO their chamber TO consider the question.
One O'Clock came, and they had no lunch.
They sent for it, and continued to discuss
The legal attitude of the plaintiffs request.
incidentally they ate their lunch.
Two O'Clock, the time set for the after
noon session, came, but there were no
Judges on the bench. They were in the
chamber wrestling about the jury question.
The attorneys and parties to the suit
were present and the lobby was packed
with spectators. Finally, ats AS O'Clock, Pre-
siding Judge Henshaw entered alone and
ordered the clerk to call the names of the
jnrymen. All answered from the lobby ex-
cept one.
Gentlemen" said Judge Heushaw. "you
are excused until tomorrow morning at 10
O'Clock and this court stands adjourned till
Inas time" And thus the second day
ended.
The general surpOsitiOn was that the
Judges. Ike hung jury, were unable 70
agree during the afternoon and wanted
M0re time.
THE FORENOON SESSION.
The whole of tile forenoon had been occu-
pieS IN arguing the question as to whether
jury should sit upon the case at all.
Attorney Mullaney, for the defense, be-
gan the proceedings by stating that in the
law library Of San Francisco he had found
briefs filed in some of the suits referred to
by Mr. HOtchkss, for the plaintiff, in bis
objections 10 jury trial. Mr. HotchklSs
and his confreres had said the day before
that they knew of no such briefs.
Hotchkiss continued his arguments
against a jury, claiming the defendants had
lost any light they might have had TO a jury
trial by not demanding Ii within five days
sitter the issues we're joined, as the rules of
the court require. He admitted that this
RUE, being made by the court, could be
Rbrogated by ii, but held that ii ought not
to he abrogated in this case unless the de-
PENDANTS should show good reason therefor.
Harvey Brown, lawyer-in-chief or the
waterfront company, then ended the argu-
meBts tor his side by presenting the f0rmu-
lated objections to jury as follows:
Il. This Is an equitable action.
So Defendants answer cannot change an
equitable action into one at law.
''3 The equity side of this court having
acquired jurisdiction by the filing of the
complaint cannot be deprived of it by de-
PENDANTS answer"
MFARIAND CRITICIZED
Previous to this the eloquent Hotchkiss
had criticized the decision of Judge McFar-
land in the Newman-Duane case, asserting
that McFarland's decision does not COM
mend itself TO the bar and that it IS not
good law.
Mcfarland. he said. was the Judge who
had framed and carved upon the judicial
history Cf the State the idea that there
could be jury in case like this, and. in
REFER ng to another case, he charged that
Mcfarland was sulknE in his tent because
his opinions had been ''sat down upon"
THE JUDGES RULING.
I'VE want this case tried so it will STAY
tried, said Mi HOtchkiss, and then he sat
down.
"Them's my sentiments" said Judge
Henshaw, in substance, though not in
words. He reviewed the objections briefly,
and. as Mr.. Hotchkiss would say, sat
down upon them" 1t was decided, taking
the rulings of tie Supreme Court as pre-
eminent, that there must be a jury.
Then the second attack was commenced
by j. c. Martin, who also excepted 10 the
ruling just given. He cited the Newman
Duane and other cases where the Jury had
been called TO try certain issues. The
plaintiff here asked TO have only special
Issues submitted to a Jury at the proper
time. so far as the plaintiffs title consisted
OF statutes and municipal ordinances and
cOnveyances the court should pass on IL
without the Intervention of Jury. This
would be first considered. 1t was not neces-
saTv for jury TO pass on these records. for
1t was matter of construction only. The
plaintiff therefore asked that the court pro-
ceed 10 try the record title, and that, having
passed on thar. 1t should afterward call a
JnTy TO try the issues raised by defendants
answer. 1t would be jury called to render
special verdict.
THE OTHER SIDE OBJECTED.
This was like a bombshel thrown among
the defendants attorneys, who had sat
cooIly throughout the argument of the other
point They were ready to meet it, how
ever. and did so with foTcible arguments.
EX-Judge Cotton maintained that the last
proposition. like the former, was barred by
the decision in the Newman Duane suit
1t was purely law decision, entitled TO be
tried BY jury.
Mr. Mullaney denied that the case is an
equity action. and called il a statutable
action. de placed on record a formal OBJ
1eetlnn to an order for a jury to give a
special verdict and the court then ad
lourned, the day ending without the ques-
tion being decided.