The plaintiff brought this action in district court to recover a balance due upon a judgment rendered in justice’s court. Over the defendant’s objection, the case was tried to the court without a jury, under section 5630, Rev. Codes 1899, and resulted in findings against the plaintiff and a judgment dismissing his action. He has appealed from the judgment, and in a statement of case containing all of the evidence offered has demanded a retrial of the entire case in this court, under the provisions of the above section.
We are unable to retry the case, and for reasons which are fundamental. The action is at law for the recovery of money only, and was triable to a jury as a matter of strict legal right. The answer presents no equitable issues whatever. The statement of case shows that the defendant demanded a jury trial. This he was entitled to, and his right thereto was not waived. On the contrary, it was insisted upon in the district court, and is again urged in this court. Upon this state of facts the trial court has no authority of law to try the case without a jury, and for the same reason this court is also without authority to enter upon a retrial. The record presents a mistrial similar to Peckham v. Van Bergen, 8 N. D. 595, 80 N. W. 760.
The district court is directed to vacate the judgment and order a new trial. Neither party will recover costs on this appeal.