This is an action of ejectment. Prior to the first trial the case was on the calendar, and on the first day of the term the parties waived a jury trial. The case was tried by the court, resulting in a decision for plaintiff. On appeal a new trial was granted. The case was again tried by the court, resulting in a decision for defendants. After affirmance on a second appeal from an order denying a new trial, judgment was entered for defendants, the costs were paid by plaintiff, and a second trial demanded under the statute (G. S. 1894, § 5845). The case was again noticed for trial, and on the first day of the term plaintiff demanded a jury trial, which was refused. The demand was repeated when the case was called for trial during the term, and again refused. Thereupon the plaintiff refused to proceed with the trial before the court without a jury, or to introduce any evidence, and the case was by order of the court dismissed. From the judgment of dismissal plaintiff appeals.
The only question presented for our consideration is whether waiving a jury trial before the first trial was a waiver of a jury trial on the last trial. In our opinion it was not. Conditions may be wholly different at the second trial from what they were at the first. There
Judgment reversed and a new trial granted.