Schumacher v. Crane-Churchill Company
| Decision Date | 19 November 1902 |
| Docket Number | 12,205 |
| Citation | 92 N.W. 609,66 Neb. 440 |
| Parties | JOHN SCHUMACHER v. CRANE-CHURCHILL COMPANY |
| Court | Nebraska Supreme Court |
ERROR from the district court for Douglas county. Action in ejectment. Equitable defense. Tried below before JESSEN, J Judgment for defendant. Reversed.
REVERSED AND REMANDED.
Byron G. Burbank and Eleazer Wakeley, for plaintiff in error.
C. H Balliet and Kennedy & Learned, contra.
POUND C. BARNES and OLDHAM, CC., concur.
Although a number of difficult and interesting questions were argued, we need only consider the assignment that the court erred in denying the plaintiff a jury trial. The action is in ejectment. After the defendant had answered, plaintiff moved that the cause be transferred to the equity docket, for the reason that certain equitable defenses were set up. This motion was granted, the cause was transferred, and at the May term, 1900, the whole case was tried to the court, without objection, and a judgment rendered. At the same term this judgment was vacated and the cause resubmitted, without further trial, after which a new judgment was entered. Thereupon the plaintiff moved for a new trial under section 630, Code of Civil Procedure, and an order was entered, pursuant to said section, sustaining the motion and continuing the cause to the next term. At the February term, 1901, as the cause was coming on for trial, the plaintiff filed a written motion or demand that a jury pass upon the issues of a legal nature, namely, whether he had a legal estate in the premises in controversy and was entitled to possession thereof. The motion was overruled, and the request was denied, to which the plaintiff excepted. Thereafter, in due course, the whole cause was tried to the court, over plaintiff's objection, and findings and judgment were entered, from which he prosecutes error.
We are satisfied that the order transferring the cause to the equity docket because of the equitable defenses set up in the answer did not preclude the party who procured the order from demanding that the purely legal issues be tried by jury, if his request for a jury trial was timely and was insisted upon. It has been decided that an order transferring a cause to the equity docket is not an adjudication that the parties are not entitled to a jury trial, and that if demand is made prior to the time the cause is called for trial, it is error to deny a jury. Lett v. Hammond, 59 Neb. 339, 80 N.W. 1042. In that case, the cause was transferred at the instance of one party, while the other demanded a jury. But the distinction would not be material unless it could be said that the application to have the cause transferred was an assertion that there was nothing for a jury to try, and estopped the moving party from assuming a contrary position subsequently. This can not be true, for the same reason that the order transferring the cause is not a decision whether the parties are entitled to a jury. The whole case is not of necessity triable to the court without a jury because there are incidental issues which are equitable in their nature. Lett v. Hammond, supra; Yager v. Exchange Nat. Bank, 52 Neb. 321, 72 N.W. 211. By asking for the transfer, plaintiff merely asserted that there were equitable issues proper for the court to decide. He did not assert that there was nothing for a jury. Under a practice not unlike ours, it has been held more than once that consent that a case in which the facts require both equitable and legal relief should be placed on the equity docket for trial does not of itself waive the right to have the issues requiring purely legal relief tried by a jury. Wheelock v. Lee, 74 N.Y. 495; Underhill v. Manhattan R. Co., 27 Abb. N. Cas. 478; Eggers v. Manhattan R. Co., 27 Abb. N. Cas. 463. This must be so, since the practice of trying to the court the equitable defenses, by reason of which the right to maintain the action at law is challenged, and thereafter, if the disposition of the equitable defenses makes it necessary, trying the purely legal controversy, which is the gist of the case, to a jury, is well settled. Arguello v. Edinger, 10 Cal. 150; Swasey v. Adair, 88 Cal. 179, 25 P. 1119; Basey v. Gallagher, 20 Wall. [U. S.], 670, 22 L.Ed. 452; Smith v. Bryce, 17 S.C. 538, 544. We think, therefore, that the motion to transfer the cause to the equity docket and the order in accordance therewith, did not, of themselves, amount to waiver of a jury, especially as the equitable defenses in this case were relatively of little moment. There can be no doubt, however, that the plaintiff waived a jury at the first trial by going to trial upon all the issues without demanding a jury as to any of them. The statutory method of waiving a jury is not exclusive. Any unequivocal acts or conduct which clearly show a willingness or intention to forego the right, and are so treated by the trial court without objection, will have that effect. McCarty v. Hopkins, 61 Neb. 550, 85 N.W. 540; Poppitz v. German Ins. Co., 85 Minn. 118, 88 N.W. 438. When the whole case was tried and submitted to the court without objection, the right to a jury was waived. Baumann v. Franse, 37 Neb. 807, 56 N.W. 395; Gregory v. Lancaster County Bank, 16 Neb. 411, 20 N.W. 286.
It becomes necessary to consider next whether waiver of a jury at the first...
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