66 Neb. 440 | Neb. | 1902
Although a number of difficult and interesting questions were argued, we need only consider the assignment that the court erred in denying the plaintiff a jury trial. The action is in ejectment. After the defendant had answered,’ plaintiff moved that the cause be transferred to the equity docket, for the reason that certain equitable defenses were set up. This motion was granted, the cause was transferred, and at the May term, 1900, the whole case was tried to the court, without objection, and a judgment rendered. At the same term this judgment was vacated and the cause resubmitted, without further trial, after which a new judgment was entered. Thereupon the plaintiff moved for a new trial under section 680, Code of Civil Procedure, and an order was entered, pursuant to said section, sustaining the motion and continuing the cause to the next term. At the February term, 1901, as the cause was coming on for trial, the plaintiff filed a written mo
We are satisfied that the order transferring the cause to the equity docket because of the equitable defenses set up in the answer did not preclude the party who procured the order from demanding that the purely legal issues be tried by jury, if his request for a jury trial was timely and was insisted upon. It has been decided that an order transferring a cause to the equity docket is not an adjudication that the parties are not entitled to a jury trial, and that if demand is made prior to the time the cause is called for trial, it is error to deny a jury. Lett v. Hammond, 59 Nebr., 339. In that case, the cause was transferred at the instance of one party, while the other demanded a jury. But the distinction would not be material unless it could be said that the application to have the cause transferred was an assertion that there was nothing for a jury to try, and estopped the moving party from assuming a contrary position subsequently. This can not be true, for the same reason that the order transferring the cause is not a decision whether the parties are entitled to a jury. The whole case is not of necessity triable to the court without a jury because there are incidental issues which are equitable in their nature. Lett v. Hammond, supra; Yager v. Exchange Nat. Bank, 52 Nebr., 321. By asking for the transfer, plaintiff merely asserted that there were equitable issues proper for the court to decide.' He did not assert that there was nothing for a jury. Under a practice not unlike ours, it has been held more than once that consent that a case in which the facts require both equitable and legal relief should be placed on the equity docket for trial does not of itself waive the right to have the issues
It becomes necessary to consider next whether waiver of a jury at the first trial operated to prevent the plaintiff from demanding one at the second trial, after the judgment had been set aside, under section 630, Code of Civil Procedure. The waiver arose by implication only, and was not made by stipulation or agreement in open court. But Ave do not think that circumstance material. In either event, when a trial has been had to the court, pursuant to the waiver, the waiver has done its work and lost its force;
We recommend that the judgment be reversed and the cause remanded for a new trial.
• By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed, and the cause is remanded for a new trial.
Reversed and remanded.