Okmulgee Producing & Ref. Co. v. Wolf

• Decision Date: 30 January 1923
• Docket Number: Case Number: 10997
• Citation: Okmulgee Producing & Ref. Co. v. Wolf, 1923 OK 57, 212 P. 415, 88 Okla. 188 (Okla. 1923)
• Parties: OKMULGEE PRODUCING & REFINING CO. v. WOLF.
• Court: Oklahoma Supreme Court

1923 OK 57

212 P. 415

88 Okla. 188

OKMULGEE PRODUCING & REFINING CO. v. WOLF.

Case Number: 10997

Supreme Court of Oklahoma

Decided: January 30, 1923

Syllabus

¶0 1. Jury--Right to Jury Trial--Waiver.

In an action for the recovery of money, the parties are entitled to have the issues tried by jury unless a jury is waived or reference ordered, and party will not be held to have waived a jury trial unless he does by one of the three methods set out in section 555, Okla. Comp. Stat. 1921.

2. Same--"Waiver by Oral Consent."

In order to constitute a waiver "by oral consent in open court entered on the journal," there must have been a journal entry made of such waiver and a journal entry made thereafter when the jury is demanded, in which it is recited that upon the court's recollection of statement of counsel for defendant made in open court the court finds that defendant has waived the right to jury trial, is not an entry of the oral consent on the journal of the court in accordance with the provisions of the statute.

Error From District Court, Okmulgee County; Mark L. Bozarth, Judge.

Action by Geo. Wolf, doing business under the firm name of Baker, Vawter & Wolf, against the Okmulgee Producing & Refining Company for auditing services. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions.

W. H. McClarin, Poe & Lundy, and John E. Curran, for plaintiff in error.

G. W. Leopold and J. F. Brett, for defendant in error.

COCHRAN, J.

¶1 This action was commenced by defendant in error against plaintiff in error to recover the sum of $ 2,000 for services alleged to have been rendered in auditing certain books. The case was tried to the court without a jury, and judgment rendered for the plaintiff. The parties will be referred to as plaintiff and defendant, as they appeared in the lower court.

¶2 The defendant complains of the action of the trial court in denying to it a trial by a jury. The answer of the defendant was filed on March 13th. On March 27th, the defendant filed a verified motion to strike the case from the trial assignment and alleged:

"That said cause has been assigned and set for trial on the equity docket of this court to be tried without the intervention of a jury notwithstanding said cause is a jury cause and the right to trial by a jury has not been waived by this defendant."

¶3 The court, thereupon, made the following order:

"This cause coming on for hearing on this the 27th day of March, 1919, upon the application of the defendant to postpone the hearing of the cause until the cause could be tried by jury, the defendant contending that a jury had not been waived. The court upon examining said application and hearing the argument of counsel, and upon its recollection of the statement made in open court by Mr. McClarin, the counsel for the defendant, and having examined a telegram presented by counsel and signed by the said counsel for the defendant, finds that the defendant has heretofore waived the right to a trial by jury and consented that the cause might be tried by the court without a jury. It is ordered that said part of the application seeking a postponement of the hearing be granted, and that the cause be set for trial before the court, without a jury, on the 4th day of April, 1919. The defendant excepts to said cause being set for hearing before the court without a jury and excepts to the refusal of the court to continue said cause until a trial can be had before a jury."

¶4 On April 5th, the case was called for trial and the defendant again demanded a jury. This motion was by the court overruled.

¶5 Section 532, Okla. Comp. Stat. 1921, provides:

"Issues of fact arising in actions for the recovery of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered, as hereinafter provided."

¶6 Section 555, Okla. Comp. Star. 1921, provides three methods by which a jury may be waived, as follows:

"By consent of the party appearing, when the other party fails to appear at the trial by himself or attorney.

"By written consent, in person or by attorney, filed with the clerk.

"By oral consent, in open court, entered on the journal."

¶7 It is not contended that there was a waiver by either the first or second methods; but it is earnestly insisted by the plaintiff that the record shows a waiver by oral consent in open court entered on the journal, and he relies upon journal entry made by the court on the 27th day of March, in which the court states:

"Upon examining said

...