CHAPTER XLVI.

TRIAL BY THE COURT.

§ 1155. In general. Either party may bring an issue to trial, or to a hearing, and in the absence of the adverse party, unless the court for good cause otherwise direct, may proceed with his case, and take a dismissal of the action, or a verdict, or judgment, as the case may require. In actions for the recovery of specific real or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is ordered, as provided in this code. Where in these cases there are issues both of law and fact, the issue of law must be first disposed of. In other cases issues of fact must be tried by the court, subject to its power to order any such issue to be tried by a jury, or to be referred to a referee, as provided in this code. Waiver of jury trial must appear affirmatively, and not by implication. And notwithstanding the waiver, the court may direct an issue of fact to be tried by a jury. A jury may sit and hear plaintiff's testimony, and, motion for nonsuit being made, be discharged on stipulation that if the motion is denied the court may proceed without a jury, and the court then is the sole judge of the facts, as though no jury had been called.3

Trial by jury may be waived by the several parties to an issue of fact in actions arising on contract, or for the recovery of specific real or personal property, with or without damages, and with the assent of the court in other actions: 1. By failing to appear at the trial. So in replevin, when the action is called;" and filing an answer does not operate as an appearance at the trial. 2. By written consent, in person or by attorney, filed

1 Cal. Code Civ. Proc., § 594.

2 Smith v. Pollock, 2 Cal. 92. See, also, Russell v. Elliott, 2 Cal. 245; Exline v. Smith, 5 Cal. 112. But see Cal. Code Civ. Proc., § 631; Doll v. Anderson, 27 Cal. 248; Fleming v. Wilson, 39 Wash. 106, 80 Pac. 1104.

8 McDougall V. McDougall, 135 Cal. 316, 67 Pac. 778.

4 Cal. Code Civ. Proc., § 631. See Farwell v. Murray, 104 Cal. 467, 38 Pac. 199.

5 Waltham v. Carson, 10 Cal. 178. In ejectment, see Doll v. Feller, 16 Cal. 433. Generally, see Gillespie v. Benson, 18 Cal. 409.

Zane v. Crowe, 4 Cal. 112.

with the clerk. 3. By oral consent in open court, entered on the minutes. Equitable cases are properly triable by the court, and the trial of issues of fact by a jury cannot be claimed as of right, but rests in the discretion of the court; and in chancery cases parties are not entitled to a trial by jury. And in such cases the court may disregard the verdict of a jury.10 In a suit between partners for a dissolution, accounting, etc., where there are questions of fact which might properly be tried by a jury, yet if the cause is actually tried by the court, and all the testimony in, and the cause finally submitted to the court for its determination, it is then too late to order a trial by jury. It is the duty of the judge to decide the questions submitted, and it is the right of the parties respectively to have such decision.11 But it is no error for a judge to hear arguments at chambers after a cause has been submitted to him, and thereupon decide the case.12 In Missouri, proceedings against a constable for delinquency must be heard by the court.13 In a case for specific performance and damages, where specific performance cannot be adjudged, the case may be retained and sent to a jury to award damages.14 And so in a case to reform a policy and recover for a loss.15 Both legal and equitable relief may be sought in the same action, but when plaintiffs move a trial at a special. term, and defendants demand a jury trial, the court should direct the cause to be tried by the jury.16 So relief was refused and complaint dismissed where plaintiff elected to sue as in equity, and then, on failure at trial, wished the case retained and tried as at law. On mixed issues involving a demand for

17

7 Cal. Code Civ. Proc., § 631.

8 Moffat v. Moffat, 10 Bosw. 468; Moffat v. Mount, 17 Abb. Pr. 4; McCarty v. Edwards, 24 How. Pr. 236; Dearborn Foundry Co. v. Augustine, 5 Wash. 67, 31 Pac. 327; Wintermute v. Carner, 8 Wash. 585, 36 Pac. 490.

9 Walker v. Sedgwick, 5 Cal. 192; Cahoon v. Levy, 5 Cal. 294; Koppikus v. State Capitol Commissioners, 16 Cal. 248.

10 Goode v. Smith, 13 Cal. 84; Knapp v. Day, 4 Colo. App. 21, 34 Pac. 1008; Kirtley v. Marshall etc. Mining Co., 8 Colo. 279, 6 Pac. 920.

11 O'Brien v. Bowes, 4 Bosw. 657.

12 City of San Jose v. Shaw, 45 Cal. 178.

13 Hart v. Robinett, 5 Mo. 11; Hart v. Spence, 5 Mo. 17.

14 Barlow v. Scott, 24 N. Y. 40; Stevenson v. Buxton, 37 Barb. 13, 15 Abb. Pr. 352. See, also, See v. Partridge, 2 Duer, 463.

15 New York Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357, 12 Abb. Pr. 414, 21 How. Pr. 296; reversing 10 Abb. Pr. 34; Van Valen v. Lapham, 13 How. Pr. 240; overruling Van Beck v. Village of Rondout, 15 Abb. Pr. 48.

16 Davis v. Morris, 36 N. Y. 569.
17 Craig v. Hyde, 24 How. Pr. 313.

equitable relief or damages, the case may be retained and sent to a jury after failure to establish a former demand, in a trial by the court.1

18

§ 1156. Waiver of jury.—A jury can only be waived in one of the modes prescribed by the statute." Though a jury trial may have been demanded by the defendant before the trial, it is waived by his failure to appear at the trial, and the court may dispense with a jury in such case. 20 The right is not waived. by neglecting to demand a jury at the time the case is called to be set for trial, notwithstanding a rule of court that a jury shall then be demanded.21 But where a case has been set down by consent of counsel for trial, and afterwards comes on regularly for trial before the court without a jury, and the trial actually begins, it is a waiver of a jury trial.22 The recital of the waiver of a jury trial in the findings cannot prevail against a showing in the bill of exceptions that a jury trial was demanded and denied. If a jury has been waived, and a trial had before a referee, the waiver holds good for a retrial of the cause after a reversal on appeal. Though a jury has been waived in a law case, the lower court may, in its discretion, call a jury.25

23

§ 1157. Equity cases.-In the trial of equity cases the court. may, on its own motion, invoke the aid of a jury to determine specific questions of fact, but such findings are simply advisory.26 It is within the discretion of the court to submit both legal and equitable issues to the jury at the same time.27 But the right of trial by jury, considered as an absolute right, does not extend to cases of equity jurisdiction.28 In such cases the court may pass

18 Genet v. Howland, 45 Barb. 560, 30 How. Pr. 360.

19 Swasey v. Adair, 88 Cal. 179, 25 Pac. 1119.

20 McGuire v. Drew, 83 Cal. 225, 23 Pac. 312. Continuance of trial at defendant's request no waiver. See Farwell v. Murray, 104 Cal. 464, 38 Pac. 199. Application for mandamus, waiver of right of jury, see Territory v. County of Bernalillo, 4 N. Mex. 204, 16 Pac. 855.

21 Biggs v. Lloyd, 70 Cal. 447, 11 Pac. 831.

22 Polack v. Gurnee, 66 Cal. 266, 5 Pac. 229, 610.

28 Downing v. Le Du, 82 Cal. 471, 23 Pac. 209.

24 Park v. Mighell, 7 Wash. 304, 35 Pac. 63. Waiver of jury-presumption upon appeal. See Montgomery v. Sayre, 91 Cal. 206, 27 Pac. 648.

25 Fleming v. Wilson, 39 Wash. 106, 80 Pac. 1104.

26 Hall v. Linn, 8 Colo. 264, 5 Pac. 641.

27 Houser v. Austin, 2 Idaho, 204, 10 Pac. 37.

28 Pacific Railway Co. v. Wade, 91 Cal. 449, 25 Am. St. Rep. 201, 27 Pac. 768, 13 L. R. A. 754.

upon all legal issues incidental to the equitable relief sought.29 The court may call a jury to try such specific questions of fact as may be submitted to them, reserving to itself the power to make its own findings upon consideration of the evidence and the verdict.30 If an action is tried on the theory that it is for damages. for a nuisance, and abatement thereof is not decreed, it cannot be objected that judgment was based wholly upon the verdict.31 An action to foreclose the lien of a street assessment is in equity, and a party is not entitled to a jury trial.32 So of an action to foreclose a mechanic's lien,33 and an action for an accounting between partners.34 Nor is a plaintiff entitled to a jury trial in an equitable action for an injunction to restrain the diversion of water and to abate a dam and ditch as a nuisance, although there is joined therewith a claim for damages suffered in consequence of past diversion of water.35 The Oregon statutes relating to practice in equity suits was intended to apply only to ordinary suits, and not to cases where the trial court is merely called upon to inquire into and adjust a collateral matter not affecting the merits.37 The court does not acquire the right to pass upon a legal defense without a jury trial by virtue of being first called upon to dispose of an equitable defense. And if the trial of the equitable defense does not obviate the necessity of a trial of the issues of law, they must be tried in the same manner as if no equitable defense had been interposed.38

§ 1158. Argument by counsel.-Where a case is tried by the court, and it is satisfied as to the evidence and the law, it is not compelled to listen to argument.39

1159. Evidence.-Injunction suits being tried de novo on appeal, the admission of incompetent evidence by the trial court is not reversible error, since such evidence will be disregarded 84 Hamar v. Peterson, 9 Wash. 152, 37 Pac. 309.

29 Downing v. Le Du, 82 Cal. 471, 23 Pac. 202.

30 Saint v. Guerrerio, 17 Colo. 448, 31 Am. St. Rep. 320, 30 Pac. 335.

31 Cushing-Wetmore Co. v. Gray, 152 Cal. 118, 125 Am. St. Rep. 47, 92 Pac. 70.

82 Santa Cruz etc. Pavement Co. v. Bowie, 104 Cal. 286, 37 Pac. 934.

33 Installment etc. Loan Co. V. Wentworth, 1 Wash. 467, 25 Pac. 298.

35 Churchill v. Baumann, 104 Cal. 369, 30 Pac. 93, 38 Pac. 43.

86 Sess. Laws 1885, p. 69. 87 Martin v. Martin, 14 Or. 165, 12 Pac. 234.

38 Swasey v. Adair, 88 Cal. 179, 25 Pac. 1119.

39 Barnes v. Benham, 13 Okla. 582, 75 Pac. 1130.

41

by the appellate court.10 Nonsuit should not be granted if the evidence is sufficient to support a verdict for the plaintiff, whether the trial is by court or by jury. On a motion for judgment in an equity suit, plaintiff is not entitled to have any inference that may be drawn from the evidence drawn in his favor, as in an action at law. A refusal of nonsuit is proper, if defendant's testimony afterward supplies the omission.43

42

44

§ 1160. Findings by the court-Time to file.-Upon the trial of a question of fact by the court, its decision must be given in writing, and filed with the clerk, within thirty days after the cause is submitted for decision. The trial of a cause by the court is not concluded until the decision is filed with the clerk.45 And there is no decision by the court till it has made written findings, regardless of its oral statements as to how it would decide.40 The code section is directory as to the time required for the written decision to be filed; and no penalty is imposed upon the court for failure to act in time. The statute is applicable to cases both at law and in equity, but does not apply in cases of nonsuit.50 If the judge should discover a clerical mistake in his findings, or that he had inadvertently committed an error, he should correct it at the same term, before the entry of judgment, while the proceeding is still in fieri, and in such a manner as not to deprive the party of an opportunity to move for a new trial, or as to abridge the time for motion for new trial, or to cause him to lose any other right thereby, and a new trial should not be granted on that ground. A judge who tried the case without a jury did not

40 Hastings v. Anacortes Packing Co., 29 Wash. 224, 69 Pac. 776.

41 Freese v. Hibernia Sav. etc. Soc., 139 Cal. 392, 73 Pac. 172.

42 Streicher v. Murray, 36 Mont. 45, 92 Pac. 36.

43 Trickey v. Clark, 50 Or. 516, 93 Pac. 457; Missouri Pac. Ry. v. Bent ley (Kan.), 93 Pac. 150.

44 Cal. Code Civ. Proc., § 632; McKeon v. McDermott, 22 Cal. 667, 83 Am. Dec. 86.

45 Connolly v. Ashworth, 98 Cal. 205, 33 Pac. 60. See San Joaquin Land etc. Co. v. West, 99 Cal. 345, 33 Pac. 928.

40 Russell v. B. Schade Brewing Co., 49 Wash. 362, 95 Pac. 327.

49

47 McQuillan v. Donahue, 49 Cal. 157; People v. Dodge, 5 How. Pr. 47; Lewis v. Jones, 13 Abb. Pr. 427.

48 Wyatt v. Arnot, 7 Cal. App. 221, 94 Pac. 86.

49 Lyons v. Lyons, 18 Cal. 447. See, also, Duff v. Fisher, 15 Cal. 375; Stewart v. Slater, 6 Duer, 83, 102; Burger v. Baker, 4 Abb. Pr. 11. Contra, White Crest Canning Co. v. Sims, 30 Wash. 374, 70 Pac. 1003.

50 Gilson R. M. Co. v. Gilson, 47 Cal. 597.

51 Prince v. Lynch, 38 Cal. 531; 99 Am. Dec. 427. And see Crim v. Kessing, 89 Cal. 478, 23 Am. St. Rep. 491, 26 Pac. 1074; Smith v. Taylor, 82 Cal. 533, 23 Pac. 217.