113 Ark. 261 | Ark. | 1914
(after stating the facts). The defendant ' was entitled to a trial by jury unless he waived it. Starks v. Couch, 109 Ark. 534, 160 S. W. 853. Section 6212 of Kirby’s Digest reads as follows: £ £The trial by jury may be waived toy the parties in actions arising on contract, and, with the assent of the court, in other actions in the following manner:
“First. By failing to appear at the trial.
“Second. By written consent in person, or by attorney, filed with the clerk.
“Third. By oral consent in open court, entered on the record.”
It will be noted that the present case originated in the justice court and was appealed to the circuit court by plaintiffs. The case was there docketed and set for trial along with three other cases on the 5th day of June, 1913'. On that day the parties in all these oases announced ready for trial. The calendar was then called by the court to ascertain what cases were to be tried by the court and what cases by jury. During this proceeding the attorney for defendant absented himself from the court room; but he did so at his peril. It is true the calling of the docket to ascertain in what cases a jury would toe waived is a preliminary step, tout it is none the less a necessary one. • In this way the court is better able to control the attendance of juries during the term, to lessen the expenses of the court, and to facilitate the transaction of business. Therefore, it was a part of the trial within the meaning of the statute, and the defendant having announced ready for trial, was required to be present at all steps thereafter to be taken in this case until it was disposed of. He absented himself at his peril, and can not complain that a step in the trial was taken in his absence. The issue, as presented upon appeal, stands as if the defendant’s counsel was present when the court called the calendar to ascertain what cases should be put upon the jury waived list, and that he did not speak when called upon to do so. Under these circumstances, he will be deemed to have waived a trial by jury. ^
^ Again, it is contended by counsel for defendant that when he returned to the court room there were some of the jury present in the court room, although' they had been excused from further service during the day. The record does not show definitely how many jurors were present, but, according to the contention of defendant’s counsel himself, there were not more than four or five present. If all the members of the jury had been present it might be said that the court abused its discretion in not then allowing the defendant to demand a trial by jury; but the plaintiffs were entitled to a trial by a jury of twelve, and inasmuch as this right could not be given them because the attendance of the absent jurymen could not be secured without delay and expense, the court did not abuse its discretion in refusing to have them summoned again.
We are of the opinion that under the facts as shown by the bill of exceptions the defendant waived Ms right tq a trial by jury; and the judgment will be affirmed.