| Tenn. | Sep 15, 1915
delivered the opinion of the Court.
This is a contested will suit. The only question for • decision is whether the parties waived a jury trial of the issues made up in the circuit court. That court, tried the issues without a jury, and sustained the will. The ruling of the circuit judge was that the parties had waived a jury trial. The court of civil appeals, in an opinion by Mr. Justice Higgins, affirmed the judgment, and contestant presents the question to us by her petition for certiorari.
It is not insisted that either party made a demand for a jury trial of the issue in the manner prescribed
. Beyond all doubt, such an issue was a civil suit, triable by jury when our jury statutes above named were passed. The first of those statutes, in express terms, applies to any civil suit, and the second to all civil suits triable by jury. We must ascribe to the legislature the knowledge that an issue devisavit vel non was a civil suit triable by jury, and it follows as a conclusion entirely reasonable that the legislation includes such issues along with other civil suits triable by jury, and imposes on parties to such issues the duty of making a demand for a jury trial in the manner required by the acts.
It is manifest, without authority, that the two acts should be construed together; but the point has been expressly ruled in Swink v. McKnight’s Executors, 88 Tenn, (4 Pick), 765, 14 S.W., 311" court="Tenn." date_filed="1890-01-02" href="https://app.midpage.ai/document/railway-co-v-wynn-8298307?utm_source=webapp" opinion_id="8298307">14 S. W., 311. The terms of these jury acts indicate their application to the trial of issues of fact in courts of chancery; but a contrary ruling on this point, based upon sound reason, has been
We see no reason to support the view that the statutes in question were not intended to apply to issues devisavit vel non which might not as well support a similar view as to other civil suits in which the statutes have been held to apply. Garrison v. Hollins, Burton & Co., 70 Tenn. (2 Lea), 684; Coulter v. Sewing Machine Co., 71 Tenn. (3 Lea), 115; Railroad v. Foster, 78 Tenn. (10 Lea), 351; McGuire v. Railroad, 95 Tenn. (11 Pick.), 707, 33 S.W., 724" court="Tenn." date_filed="1896-01-07" href="https://app.midpage.ai/document/mcguire-v-railroad-8298917?utm_source=webapp" opinion_id="8298917">33 S. W., 724; Warren v. Grocery Co., 96 Tenn. (12 Pick.), 574, 36 S.W., 383" court="Tenn." date_filed="1896-05-06" href="https://app.midpage.ai/document/warren-v-grocery-co-8298974?utm_source=webapp" opinion_id="8298974">36 S. W., 383; Casey, etc., Mfg. Co. v. Weatherly, 97 Tenn. (13 Pick.), 297, 37 S.W., 6" court="Tenn." date_filed="1896-09-26" href="https://app.midpage.ai/document/casey-etc-mfg-co-v-weatherly-8299024?utm_source=webapp" opinion_id="8299024">37 S. W., 6.
Contestant insists that the words “triable by jury,” as used in the acts, should be held to apply only to cases where a jury trial was “permissible,” and not to cases where such a trial was “imperative,” under a statute such as section 3912, Shannon Code. This argument is without merit. Under our constitution, where the right to trial by a jury exists, whether it be declared by the imperative terms of a statute or not, the right is protected by article 1, section 6, of that instrument, which declares “the right of trial by jury shall remain inviolate. ’ ’ The permanency of the right depends upon the constitution. If the right rested alone in the statute, the legislature could by a subsequent statute mod-
“In suits at common law, where the value in controversy shall exceed twenty dollars ($20), the right of trial by jury shall be preserved,” etc.
But the supreme court of the United States has uniformly held that the rigjht may be waived in such actions. See cases cited in Encyc. Digest U. S. Supreme Court Reports, vol. 7, p. 762, note 95. The right to trial by jury in a contested will case may be waived. 40 Cyc., p. 1320; Pritchard on Wills and Administration, section 366. A party may waive his right of trial by jury during the pendency of proceedings in the cause by conduct inconsistent with the exercise of such right. In re Pittsburg, 243 Pa., 392" court="Pa." date_filed="1914-01-05" href="https://app.midpage.ai/document/pittsburghs-petition-6252013?utm_source=webapp" opinion_id="6252013">243 Pa., 392, 90 Atl., 329, 52 L. R. A. (N. S.), 262; Indianapolis N. T. Co. v. Brennan, 174 Ind., 1, 87 N.E., 215" court="Ind." date_filed="1909-02-18" href="https://app.midpage.ai/document/indianapolis-northern-traction-co-v-brennan-7055873?utm_source=webapp" opinion_id="7055873">87 N. E., 215, 90 N. E., 65, 68, 91 N. E., 503, 30 L. R. A. (N. S.), 85.
“And a failure to demand a jury as aforesaid shall be deemed and held conclusively an agreement of the parties to submit all issues and questions of fact to the decision of the judge without a jury. ”
The act of 1889 provides:
“And unless such demand is made, and entry thereof on the trial docket, it shall be the duty of the court to try the case without a jury.”
There was no error in the judgment of the court of civil appeals, and it is accordingly affirmed.