M'Geagh v. Nordberg

• Decision Date: 09 May 1893
• Citation: 53 Minn. 235
• Parties: S. A. McGEAGH <I>vs.</I> P. N. NORDBERG.
• Court: Minnesota Supreme Court

53 Minn. 235

S. A. McGEAGHvs.

P. N. NORDBERG.

Supreme Court of Minnesota.

Argued May 5, 1893.

Decided May 9, 1893.

Appeal by defendant, P. N. Nordberg, from an order of the Municipal Court of the City of Minneapolis, Stephen Mahoney, J., made September 21, 1892, denying his motion for a new trial.

A. B. Darelius, for appellant.

Robert Stratton, for respondent.

MITCHELL, J.

This was an action to recover for services as agent or broker in securing a loan for defendant. In his original complaint the plaintiff declared on an express contract to pay a specified amount. When the case was called, both parties waived a jury, and the trial was commenced before the court. On the trial the plaintiff offered evidence of the reasonable value of his services, which was excluded as not being admissible under the pleadings. Thereupon the plaintiff asked and obtained leave to amend his complaint so as to allege an implied contract to pay what the services were reasonably worth, and the cause was continued over the term. The cause, being again at issue upon the amended pleadings, and being "on the calendar of the May 17, 1892, general term of the court, which date was the first day of that term for setting cases, was called to be set for a day certain. The defendant, in open court, demanded a trial by jury, which the court refused to grant," to which refusal defendant excepted. The cause was continued over until the June term, when, upon the case being again called, "the defendant demanded, in open court, a trial by jury, which the court refused, to which refusal the defendant duly excepted," and thereafter, upon a day set, the cause was tried by the court without a jury. The principal question in the case is whether the court erred in refusing defendant a jury trial.

It will be observed that the record is silent as to the ground upon which defendant's demand was refused. It is a familiar rule that, to entitle an appellant to a reversal, the error assigned must appear affirmatively of record, as every reasonable presumption is in favor of the regularity of the proceedings of the court below. If the court had refused defendant's demand on the ground that the waiver of a jury trial of the issues under the original pleadings amounted to a waiver of a jury trial of the issues subsequently formed under the amended pleadings, we have no doubt this would have been error. The issues under the two sets of pleadings were essentially different. All that defendant waived...