Knight v. Farrell & Reynolds

HARALSON, J. The requirements of section 6 of the act to amend the act creating the city court of An-niston, touching the trial of civil causes without a jury, and the waiver of a jury trial, have been held, for the purpose of securing such a trial, to be mandatory.-Ex parte Ansley, 107 Ala. 613. By the terms of the act, the plaintiff to be entitled to a trial by jury, must “at the commencement of the suit, or when the cause is at issue” indorse “such demand on the summons and complaint or other original process,” or the plaintiff having failed to make such demand, the defendant is entitled to a trial by jury, ' ‘by indorsing such demand in writing on the plea, or demurrer, or other pleadings,” &c. If this is not done, the issue and question of fact shall be tried by the court, without the intervention of a jury.-Acts of 1892-93, p. 338. The plaintiffs in this case, did not demand a jury for its trial, and, therefore, so far as they were concerned, under this statute, the right for such a trial was forever waived, unless, if it should ever happen, after a trial by the court, a new trial should be granted, or when the judgment rendered should be reversed and remanded by the Supreme Court, in either of which contingencies, either party having waived, may demand a jury. The defendants, however, when they appeared and filed a demurrer to the complaint, demanded a jury trial and paid the jury tax, all in the manner as required by the statute. This was done in April, 1895. At the October term following, the demurrer was considered and passed on by the court. Some of the grounds assigned were overruled and some sustained. Thereupon, the defendants, as appears, in open court, in the presence of plaintiffs’ counsel and without objection, withdrew their demand for a jury which had been previously made, and an order was made by the court, and entered as follows : [262] “Oct. 7, 1895. The defendants withdraw their demand for a jury.” This order, as appears from the abstract, was entered on the minutes of the court. It seems, the clerk did not transfer said cause from the jury to the non-jury trial docket, and at the January term 1896, the defendants moved the court to transfer or set said cause for trial on the regular non-j ury civil trial docket of the court, which motion the court overruled and rendered judgment against defendants on said motion. When the order was made and entered by the court on the motion of defendants, the cause was virtually transferred from the jury to the non-jury docket, 'and in making up the dockets for the ensuing term of the court, the clerk should have entered said cause on the latter docket. That the defendants had the right to withdraw their previous demand for a jury trial, seems scarcely open to controversy. The trial by jury was a personal privilege, which, in the beginning they had the right, under the statute, to invoke or waive, in the exercise of which privilege, the plaintiffs having waived a jury, had no interest or rights. Being a personal privilege, it was competent for defendants to waive it, without the consent of plaintiffs, since such a waiver did not in any wise interfere with them, but really operated to allow plaintiffs their preference, — impliedly expressed in their waiver of a jury trial when they filed their complaint, — to have a trial by and before the presiding judge, without the intervention of a jury.-Thompson on Trials, § 2; Thompson & Merriam on Juries, § 8; Proffatt on Jury Trials, §§ 111, 112. Besides, the plaintiffs by counsel stood by when the jury was withdrawn by defendants, and made no objection to the order of the court allowing the withdrawal. If they ever had any right to interpose objection to the granting of this order, they waived it by impliedly consenting to it. It would hardly be competent for them thus to consent to the granting of an order, and afterwards to be heard to question its validity. They will not be permitted to occupy the ambiguous attitude, of waiving or demanding a jury, whenever, in the progress of the cause, they may deem it advantageous to do so. Consent to cure error in legal proceedings may be implied as well as expressed.-Herman on Estoppel, §§ 822, 824, 835; Tower v. Moore, 52 Mo. 118. [263] The court erred, in not granting the motion of defendants for the transfer of said cause to the non-jury docket, where by the previous order of the court it rightfully belonged, and in overruling defendants' said motion. Appellees have made no objection to the case being here by appeal; and we do not consider whether there was such a judgment rendered in the court below, as will support an appeal. Appellants make application, however, in the alternative, for nmandanms to the judge of the city court of Anniston, to show cause why he should not transfer for trial this cause from the jury to the non-jury docket of said court, and the cause is properly here for that remedy.-Caldwell v. Houser, 108 Ala. 125. Our conclusions will be certified below, and a rule nisi granted to said judge, to show why the writ of mandamus should not issue as prayed for, unless being certified of our conclusions on the facts presented, he shall proceed to hear and determine the cause without the intervention of a jury, or, unless he may desire to make answer to the petition and controvert the same.-Ex parte Charleston, 107 Ala. 688; Ex parte Garland, 42 Ala. 559. Rule nisi for mandamus granted.