The Whitestown Milling Company v. Zahn

• Court: Indiana Appellate Court
• Writing for the Court: LOTZ, J.
• Citation: The Whitestown Milling Company v. Zahn, 36 N.E. 653, 9 Ind.App. 270 (Ind. App. 1894)
• Decision Date: 21 February 1894
• Docket Number: 1,103
• Parties: THE WHITESTOWN MILLING COMPANY v. ZAHN

36 N.E. 653

9 Ind.App. 270

THE WHITESTOWN MILLING COMPANY v. ZAHN

No. 1,103

Court of Appeals of Indiana

February 21, 1894

From the Boone Circuit Court.

Judgment affirmed, at the costs of appellant.

H. C Wills, for appellant.

S. M Ralston and M. Keefe, for appellee.

OPINION

LOTZ J.

The appellee sued the appellant, in the court below, to recover damages for the alleged breach of a parol contract for the delivery of five car loads of wheat. The appellant answered the complaint by the general denial. There was a trial by the court without the intervention of a jury, which resulted in a finding and judgment in favor of appellee.

One of the causes for which a reversal of the judgment is sought is, that the trial court erred in refusing the appellant a trial by jury.

This question is presented both by a bill of exceptions and by a motion for a new trial.

The order-book entry relating thereto is as follows: "Come the parties * * * and it having been agreed, on yesterday, that the jury should be waived, and cause tried by the court, the attorneys being fully agreed in open court, and said jury having been discharged by the court, the defendant now demands a trial by jury, to which the plaintiff objects, and the court sustains said objection, to which ruling the defendant excepts, and this cause is now submitted to the court for trial."

The bill of exceptions shows, that on the 10th day of April, 1893, the cause was set for trial on April 21st; that afterwards, on April 20th, "the day preceding the day on which the cause was set for trial, the judge of said court called upon the attorneys representing the plaintiff, and demanded to know if they wanted a jury to try said cause, whereupon the attorneys representing each side of said cause announced, in open court, that they did not want a jury in said cause; that thereupon said judge of said court discharged the regular panel of the jury for said term, until Monday, the 24th day of April, 1893; that afterwards, on the 21st day of April, 1893, when said cause was called for trial in the Boone Circuit Court, the secretary and treasurer of the defendant, its general manager and principal owner, was in court representing the interest of it on said trial, in person, and, on behalf of the defendant, demanded a trial of said cause by a jury, and refused to be bound by the action of his attorney on the previous day; that thereupon the judge of said court refused the defendant a trial by jury of said cause, and proceeded to hear and determine said cause himself; to which action * * * the defendant then and there excepted."

The issue joined in this case was triable by jury. The right to a trial by jury is a high privilege, and is guaranteed by both federal and State constitutions; but it is a privilege which may be waived.

By section 550, R. S. 1881, it is provided that a jury may be waived--

First. By failing to appear at the trial.

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

Third. By oral consent in open court entered on the record.

A waiver of a trial by jury can only be made in the manner specified by statute. Shaw, Admr., v. Kent, 11 Ind. 80.

If the appellant waived a jury in this case, it must have done so under the third subdivision of section 550, supra.

Oral consent may be by acts as well as words. Hauser v. Roth, 37 Ind. 89.

The record from which we have above quoted shows that appellant's counsel gave his oral consent for the waiver of a trial by jury, and this consent was entered on the record. It does not affirmatively appear that the appellant was not represented in court by its general manager when the oral consent to waive a trial by jury was entered, but conceding that it was represented by its attorney only, what were the powers of the attorney in relation to a waiver of a trial by jury? It is made the duty of the judges of the circuit courts to arrange and regulate the order of business in their...