Indianapolis Northern Traction Co. v. Brennan

• Court: Indiana Supreme Court
• Writing for the Court: JORDAN
• Citation: Indianapolis Northern Traction Co. v. Brennan, 174 Ind. 1, 90 N.E. 65 (Ind. 1909)
• Decision Date: 07 December 1909
• Docket Number: No. 21,010.,21,010.
• Parties: INDIANAPOLIS NORTHERN TRACTION CO. et al. v. BRENNAN et al.

174 Ind. 1

90 N.E. 65

INDIANAPOLIS NORTHERN TRACTION CO. et al.

v.BRENNAN et al.

No. 21,010.

Supreme Court of Indiana.

Dec. 7, 1909.

On Rehearing. Petition overruled.

For former opinion, see 87 N. E. 215.

JORDAN, J.

Appellants in this appeal have separately petitioned for a rehearing upon the grounds: First, that each of them was entitled to a trial by jury in the lower court; second, that their right to a jury trial was not waived. Appellee Bick has also petitioned for a rehearing of this case so far as may be necessary for the court to amend and modify its judgment and thereby fully sustain and affirm the judgment and decree of the Howard circuit court. He claims that, if he is not entitled to it lien as a contractor under the act of 1883 (Acts 1883, p. 140, c. 115), this right thereto is saved and awarded to him by virtue of an act of March 10, 1873 (Acts 1873, p. 187, c. 78), entitled “An act to give security to persons who contract with railroad corporations to perform work and labor in the construction of railroads,” which act he claims has never been repealed, but is in full force and effect. Other attorneys, on behalf of parties interested in like cases, in upholding their right to a lien as contractors, in briefs filed herein criticise the decision as not being supported by the authorities cited, etc. The arguments in the main advanced by appellants for a rehearing are: First, that the decision in this appeal denies to them the right of a trial of the cause by jury, a right, as they properly claim, guaranteed under the state's Constitution; second, that there should be a reversal of the judgment in its entirety, and a new trial ordered, and the cause remanded to the lower court in order that they may be afforded an opportunity to demand a trial by jury as a matter of right. It is further contended that during the progress of the trial below appellants were not in a situation to have properly demanded a trial by jury, for, inasmuch as this suit is to foreclose a statutory lien, it, under our decisions, was of equitable cognizance, and therefore triable by the court; that therefore, under the circumstances, a trial by jury could not be demanded as a matter of right, and to have requested the lower court to submit the cause to a jury would have been but a useless formality. They further argue: That they demurred to the complaint for insufficiency of facts, which demurrer was overruled, to which ruling they excepted; that they objected to the introduction in evidence of the notice in respect to the lien sought to be enforced by appellee; that by these affirmative acts on their part they raised the question of their right to a trial by jury; and that such right was by these acts clearly preserved. It is not claimed, however, that they demanded or made any request whatever in the lower court for a jury trial, and there is no ruling of the court in denying any such demand or request assigned in the motion as a reason for a new trial.

Appellants, in their contention that by the demurrer to the complaint and objection to the introduction of the notice of the lien in evidence they raised and preserved the right to a jury trial, are clearly mistaken in their view of the question. In fact, the only point presented by the demurrer and determined by the court in its ruling thereon was that the complaint stated a cause of action. If the complaint, independently of appellee's right to the lien in controversy, sufficiently stated a cause of action to entitle him to a personal judgment, then the demurrer was properly overruled. Our cases generally affirm that, if a complaint is sufficient to entitle the plaintiff to any other relief demanded, a demurrer thereto should be overruled. Linder v. Smith, 131 Ind. 147, 30 N. E. 1073;Yorn v. Bracken, 153 Ind. 492, 55 N. E. 257;Chicago, etc., R. Co. v. Woodard, 159 Ind. 541, 65 N. E. 577;Oolitic Stone Co. v. Ridge, 169 Ind. 639, 642, 83 N. E. 246. See, also; Shepardson v. Gillette, 133 Ind. 125, 31 N. E. 788;United States Saving, etc., Co. v. Harris, 142 Ind. 226, 40 N. E. 1072, 41 N. E. 451.

Opposing counsel insist that appellants waived their right to a jury trial by submitting the cause to the court without requesting or demanding that they be awarded a jury, and in not interposing any objections to the submission of the cause to the court for trial. It is insisted that an entry of record in this case fully discloses that appellants consented to the submission of the cause to the court for trial, and that thereby a jury trial was expressly waived. This entry is as follows: “Come the parties by counsel, and this cause being at issue and called for trial, the same is now submitted to the court for trial, without the intervention of a jury.” As preliminary, we may say that we might properly deny appellants' petition for a rehearing on the ground that they are not in a position to have a review of the question which they present at this stage of the case; but as their counsel assert that it is one which is before this court for the first time, and as they evince much earnestness in their argument, we have concluded to consider their points and herein give our reasons to show that their contentions or arguments in support of the petition are untenable. The question then is: Did appellants, in the lower court, either expressly or impliedly waive their right to a trial by jury?

Section 20 of our Bill of Rights declares that “in all civil cases the right of trial by jury shall remain inviolate.” That this right in all civil cases where it exists may be waived by a party entitled thereto is not disputed. Section 576, Burns' Ann. St. 1908, provides the manner by which parties in a civil action may expressly waive their right to a jury trial: First, by failing to appear at the trial; second, by a written consent in person or by attorney, filed with the clerk; third, by the oral consent in open court entered on the record. That this right may also be impliedly waived by a party failing at the proper time to make a demand or request for trial by jury is a proposition well settled by repeated decisions of this court. Madison, etc., R. Co. v. Whiteneck, 8 Ind. 217;Burgess v. Matlock, 12 Ind. 357;Sprague v. Pritchard, 108 Ind. 491, 9 N. E. 416;Jarboe v. Severin, 112 Ind. 572, 14 N. E. 490;Sheets v. Bray, 125 Ind. 33, 24 N. E. 357;Blair v. Curry, 150 Ind. 99, 46 N. E. 672, 49 N. E. 908;Boonville National Bank v. Blakey, 166 Ind. 427, 76 N. E. 529. In Madison, etc., R. Co. v. Whiteneck, supra, this court said: “If a party voluntarily abstains from claiming the right of trial by jury in a given case, it may be judicially held that it is waived.” In Jarboe v. Severin, supra, the court said: “Where a party does not ask for a trial by jury, nor object to a trial of the cause by the court, with the jury as advisory merely, it is too late to object on appeal to the mode of the trial.” In Sheets v. Bray, supra, the court said: “Where the right to a trial by jury exists, and no request is made for the same, it will be considered as waived.” In Blair v. Curry, supra, it is said: “A jury trial is waived by a failure to demand it at the time of the trial.” In Boonville National Bank v. Blakey, supra, this court, after considering the manner by which a jury may be waived, as provided by section 576, Burns' Ann. St. 1908, said: “While it does not admit of doubt that there may be an implied waiver of the right of a jury trial, yet such waiver will not be predicated upon a doubtful implication.” Or, in other words, where the waiver is predicated upon implication, the intention of the party to waive his right to a jury should be clearly manifested. In Goodwin v. Hedrick, 24 Ind. 121, this court held that an agreement to refer a cause to a referee for hearing was totally inconsistent with a submission to a jury, and was therefore a waiver of a jury trial. See, also: Taylor v. Trustees, etc., 7 Ind. App. 388, 34 N. E. 655;Whitestown Milling Co. v. Zahn, 9 Ind. App. 270, 36 N. E. 653.

In Hauser v. Roth, 37 Ind. 89, the appellant was present in court by his counsel when the cause was ordered to be referred to a master in chancery to find the facts and report his finding to the court. Appellant in that case was ordered by the court to furnish the master with a bill of particulars, and with this order he complied. He was also present in court by counsel when the master filed his report, which was ordered to be spread of record. The appellant, as it appears, in that appeal, interposed no objections to the reference of the cause to a master, and made no objections to the court's order at any stage of the proceedings. After the filing of the master's report, containing the finding, appellant then demanded a trial by jury; but his demand was overruled, to which ruling he excepted. In reviewing the question, on appeal, as to whether he had waived his right to a trial by jury, under the facts in that case, this court, after quoting from the provisions of the Civil Code of 1852, which provided the mode by which a jury trial might be waived (being the same provisions now embraced in section 576, Burns' Ann. St. 1908, supra), held that the appellant, in not objecting to the order of the court in submitting the cause to a master in chancery for a finding, must be presumed to have given his oral consent in open court, which was entered of record, and that thereby he waived a jury trial within the spirit of the third mode...