Taylor v. Wells
| Decision Date | 26 May 1902 |
| Parties | TAYLOR v. WELLS et al. |
| Court | Tennessee Supreme Court |
Appeal from circuit court, Shelby county; L. H. Estes, Judge.
Action by Sledge Wells & Co. against Emmet Taylor. From a judgment for plaintiffs, defendant appeals. Affirmed.
Smith & Trezevant, for appellant. Pierson & Ewing, for appellees.
Sledge Wells & Co. brought suit against Emmet Taylor in the circuit court of Shelby county for $1,148.50 damages claimed by reason of the falling of a defective building which they had leased from Taylor. The declaration was filed on 19th September, 1900, alleging the ownership of the building in Taylor, and the lease to Sledge Wells & Co., and a copy of the lease is made part of the declaration. It is averred that Sledge Wells & Co. took possession of the building, believing it to be safe, but it was not, and the building fell, and damaged them to the extent of $1,148.50. The declaration demanded a jury to try the issues to be joined. On February 16, 1901, judgment by default was taken and entered, and the order recites that "a writ of inquiry is awarded to ascertain the damages, as they do not appear by simple calculation from the face of the papers, and a jury will come to assess the same." The inquiry was not executed until the next term, but on the 4th June, 1901, the following order appears: "This day came the plaintiffs by their attorney, and waiving a jury to assess their damages, and consenting that said damages may be assessed by the court upon the writ of inquiry heretofore awarded in this cause, upon the judgment by default entered herein; and, proof being heard by the court, the plaintiffs' damages are by the court assessed from the proof at $1,148.50." Then follows judgment for this amount and costs. So far as the record shows, the defendant, Taylor, never at any time appeared or defended the suit. On the 27th September, 1901, Taylor filed his petition for writ of error and supersedeas, which was granted by one of the justices of the court. It is now assigned as error that the court improperly found the damages, instead of leaving the matter to a jury to ascertain and fix them. It is insisted that the holding of the court in Warren v. Grocery Co., 96 Tenn. 574, 36 S. W. 383, is conclusive of the present case. We think the contention not well made. In that case the party who had demanded a jury waived it, over the objection of the opposite party; and it was held that permitting the plaintiff to waive the jury over the objection of defendant unwittingly deprived the defendant of the benefit of a jury trial, since it was not incumbent on the defendant in view of the plaintiff's demand, to make a similar one. But in the present case no objection was made by the defendant, and he permitted the plaintiffs to make the waiver, and the trial judge to hear the proof and fix the amount, without objection or appeal; and it is too late after final judgment to complain. The jury having been once called for by the plaintiff, he could not dispense with such jury over the objection of defendant. But either party waives his right to a jury by failing to insist upon one at the proper time. Railway Co. v. Martin, 85 Tenn. 134, 138, 2...
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...of trial by jury. A party to a civil case may waive the right to trial by jury with the consent of the opposite party. Taylor v. Wells, 108 Tenn. 719, 69 S.W. 266 (1902), 50 C.J.S., Juries, Sec. 85, p. The right to a jury trial in a civil case may be waived by acquiescence in trial on the e......
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