Deering v. McCarthy

Berry, J. When this cause was called for trial, the defendant, upon an intimation of the district court that his answer was insufficient, asked leave to amend, which was granted upon condition that he stipulate to try the cause before a referee if plaintiff desired. Defendant excepted to this condition, but afterwards amended his answer, and entered into a stipulation for the appointment of W. C. Bieknell as referee to “hear, try, and determine the action.” This appeal is from an order denying defendant’s motion to set aside the referee’s report, and for a new trial. Conceding, in defendant’s favor, that the case was one in which he was entitled to a jury trial, and that the imposing of the condition was an abuse of judicial discretion, the stipulation is a clear waiver by him of any right to object in the premises. If he desired and intended to stand upon what he now claims to have been his right to a jury trial, and to a review of the action of the court in imposing the condition, he should not have executed a stipulation by which he must, in contemplation of law, be taken to have voluntarily submitted to the condition prescribed. Order affirmed.