McCeagh v. Nordberg

• Decision Date: 09 May 1893
• Citation: 55 N.W. 117,53 Minn. 235
• Parties: MCGEAGH v NORDBERG.
• Court: Minnesota Supreme Court

53 Minn. 235

55 N.W. 117

MCGEAGHvNORDBERG.

Supreme Court of Minnesota.

May 9, 1893.

(Syllabus by the Court.)

1. The waiver of a jury when a cause is called for trial is a waiver of jury trial only of the issues then formed, and not an agreement to waive it as to all new and different issues that may thereafter be formed under amended pleadings.

2. The municipal court act provides that “the party demanding a jury in a civil action shall be required to advance and pay *** a jury fee of $3, and unless such jury is demanded, and such fee paid, upon the calling of the calendar on the first day of the term at which the same is set for trial, it shall be considered to be, and the same shall be, waived, and said action tried by the court.” Held, that an appellant who assigns as error the denial of his demand for a jury trial should make it appear from the record that his demand was accompanied by payment of the jury fee into court.

Appeal from municipal court of Minneapolis; Mahoney, Judge.

Action by S. A. McGeagh against Peter N. Nordberg to recover for services rendered. Plaintiff had judgment, and defendant appeals. Affirmed.

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,...