Brock v. Louisville & Nashville Railroad , 122 Ala. 172 ( 1898 )

HARALSON, J.

— 1. The case was tried at the May term, 1896, of said circuit court, by and before the presiding judge, Avithout a jury, under the “Act to regulate the practice and proceedings in civil cases in the circuit courts of Morgan aixd Madison counties,” approved February 18th, 1895, (Acts 1894-95, p. 586). The trial resulted in a judgment for the defendant,' froxxx which the plaintiff'appealed to the Supreme Court. The judgment Avas reversed and the cause remanded, at the November term, 1896. On the return of the case to the circuit court for another' trial, at the first term thereafter, and. on the first day of the term, the plaintiff filed in the cause a Avritten demand for a trial by jury, and at a subsequent day of the term, when the cause was called for trial, aud before the trial was entered upon, — the facts stated in the motion being admitted to be true, — the eoxxrt overruled said motion and required the plaintiff to try Avithout a jury. The plaintiff excepted, and thereupon, each party demanded a special finding on the facts bv the presidixxg judge.- — Code, § § 3319, 3320, (2743, 2744).

The practice act for Morgan and Madison counties referred to above, in section 2, provides, that “In all' cases whether commenced by summons and complaint, attachment or otherwise, the issues and questions of fact shall be tried by the court without the intervention of a jury, unless the jury be demanded by the plaintiff at the commencement of the suit, or by the defendant at the time he ai>pears, or by any other person interested in such issue or question at the time he appears; such demand must be made by the plaintiff or party occupying the position Of plaintiff, by indorsing the same in writing upon the summons and complaint, attachment, petition, claim or other paper filed by him, for the purpose of instituting such suit, or when he intervenes without such process, upon the pleading or paper filed by him, for the purpose of presenting such issue or question of fact; and by the defendant or other party occupying the position of defendant, including garnishee, by indorsing such demand in writing upon the demurrer, plea, answer, or other pleading filed by him,” etc. The contention of appellant is, that a waiver,, such as is provided for in said act, applies only to the particular trial at which it is made, and not to another trial, after the reversal of the cause on appeal to the Supreme Court, when it comes on again to be tried in the lower court; and, on the part of defendant, that a waiver when once made holds throughout the life of the cause in the lower court.

The question turns, of course, upon the construction of said practice act of 1894-95.

The terms of this statute as to a demand and waiver of a jury are the same in substance as those contained in the act to establish the city court of Anniston — - Acts, 1892-93, p. 334, § 6. There, the requirement is, that in all civil causes at law in said court,“the issue andquestion of fact shall be tried by the court without the intervention of a jury, unless a jury be demanded by the plaintiff at the commencement of the suit, or when the cause is at issue, by indorsing such demand on the summons and complaint or other original process, or by indorsing such demand in writing on the plea, demurrer, or other proceedings,” etc. In construing this latter act, we held, that the provisions of this act are mandatory, and that a failure to make the indorsement as required was a waiver of a jury trial in the cause. In the case referred to we said: “It seems to us beyond the pale of controversy that the provisions of said section 6 are intended to secure trials of civil actions at law without the expense of juries, unless jury trials shall be demanded at the times, and in the manner they prescribe * * * Let it, then, be assumed, as counsel insist, for the sake of argument, that the language prescribing the time and manner would, unaffected by other language in connection with it, be treated as directory merely, to be violated at will by the suitor, and yet preserve to him the legal right to demand a jury trial at any time thereafter, we have the above quoted provision, in express terms, declaring that the failure to -observe these very dir cations shall be held a waiver of the right, thus converting the direction into a mandatory provision.” — Ex parte Ansley, 107 Ala. 613.

Again in another case in construction of this same statute, where plaintiffs had failed to demand a jury, we said: “The plaintiffs in this case did not demand a jury for its trial, and, therefore, so far as they were concerned, under the statute, the right for such a trial was forever waived.” — Knight v. Farrell, 113 Ala. 258. It is true, in the Anniston court statute, there is a provision, to the effect, that Avlien a cause is tried without the intervention of a jury, and a new trial is granted by the court, or when the same shall have been reversed and remanded by the Supreme Court, either party to the case may demand a jury, but that provision is wanting in the particular act before us. The statute deals with eases, not trials. We feel constrained to reaffirm our former holding, that when a jury is once waived under the statute, it is forever waived. — Bailey v. Joy, 132 Mass. 356; Railroad v. Foster, 10 Lea. (Tenn.) 351; Heacock v. Lubkee, 108 Ill. 641. The cases of Martin v. King, 72 Ala. 354, and Cross v. The State, 78 Ala. 430, it may be Avell to add, are distinguishable from the case at bar. The first of these Avas tried under section 3319 (2743) (3029) of the Code, which provides that an issue of fact in a civil case may he tried and determined by the court, without the intervention of a jury, whenever the parties or their. attorneys file an agreement in writing with the clerk waiving a jury. This statute deals with the trial of the particular case at a particular term. And the last cited case involves, not the construction of a statute, but an agreement of counsel made for the trial of a cause at a particular term.

2. We have carefully examined the finding of the court and the evidence in the cause. Without reviewing it at length, it is sufficient to say, that the facts set up in plaintiff’s second replication on which, after the defendant’s rejoinder thereto was overruled, issue was joined, appear from the evidence to have been satisfactorily established, and that the finding of the court otherwise on the facts was erroneous.

Reversed and remanded.