12 W. Va. 688 | W. Va. | 1878
delivered the opinion of the Court:
The first error assigned is to the judgment of the court in overruling the demurrer to the declaration.
No defect in the declaration is pointed out, and I have found none therein. The demurrer was properly overruled.
The third error complained of is: That the judgment for $500.00 was rendered on the 24th day of March,
The 13th section of the bill of rights, provides : “ In suits at common law, where the value in controversy, exclusive of interest and costs exceeds $20.00, the right of trial by a jury of twelve men, if required by either party, shall be preserved, &c.” The Code then in existence did not conflict with this provision of the bill of rights, but was in exact accordance with it.
Section 35 of chapter 47, acts of 1872-3, provides, that “in any case, except a case of felony, in which a trial by jury would be otherwise proper, the parties, or their counsel, by consent entered of record, may waive the right to have a jury, and thereupon the whole matter of law and fact, may be heard and determined, and judgment given by the court,” &c.
In The Madison and Indianapolis R. R. Co. v. Whiteneck, 8 Ind. 217, it was held, that “ if a party voluntarily abstain from claiming the right of trial by jury in a given case, it may be judicially held that it is waived. Judge Perkins said, in delivering the opinion of the court in that case, “ It is said a jury should have been called to assess the damages, notwithstanding the failure of the defendant to appear, as the case stood upon the general issue. The Constitution of our State does not say that trials shall be by jury. It says: ‘The right of trial by jury shall remain, &c.’. If a party voluntarily abstain from claiming the right in a given case, we think it may be judicially held that it is waived. Hence the statute enacting that such act shall be regarded as a waiver, is valid.”
In Miller v. Hayford, 1 Wis. 40, it was held, “ if a party in a county court do not object to a trial by a jury of six persons as prescribed by the statute, or if he join in the selection of such jury, he will be deemed to have
In Greason v. Keteltas, 17 N. Y. 498. The court said, “the right of trial by jury in a proper case is absolute, and any decision of the court overruling or denying such right would be plainly erroneous. But it is a right which may be waived, and if a party who is entitled to it enters voluntarily upon a trial by the court without objection, he would ordinarily, no doubt, be understood as consenting to that form of trial.” The above decision was approved in Barlow v. Scott, 24 N. Y. 40. We think that while there was no formal consent entered of record to the court trying the case in lieu of a jury, yet the record shows that the defendants were present in court and did not require a jury. The record states that, “neither party required a jury, which was equivalent to the defendants consent entered of record that the court should try the case in lieu oí a jury. The judgment was authorized under the Constitution and
It is also assigned as error that the court should not in its last judgment have given costs, without saying whether it was for costs generally or only for additional costs. There being no other error, even if this was one,
The judgment of the circuit court must be affirmed with costs and damages according to law.
Judgment affirmed.