Opinion
No. 33082.
June 24, 1947. Rehearing Denied September 9, 1947.
(Syllabus.)
APPEAL AND ERROR — Dismissal where appeal without merit.
Appeal by transcript where all alleged errors are predicated upon refusal of trial court to grant trial by jury and the journal entry of judgment recites that jury was waived by the parties is wholly without merit and will be dismissed.
Appeal from District Court, Pottawatomie County; Kenneth Jarrett, Judge.
Action by J.M. Yoder against A.E. Glenn. Judgment for plaintiff, and defendant appeals. Dismissed.
Odes Harwood, of Oklahoma City, for plaintiff in error.
Reily, Reily Spurr, of Shawnee, for defendant in error.
This is an appeal by transcript from a money judgment. All alleged assignments of error are concededly predicated upon the refusal of the trial court to grant a jury trial.
The journal entry of judgment which was approved by appellant recites:
"Premises considered the court finds that the plaintiff and the defendant have hereto (heretofore) waived a jury in this matter, and agreed that said cause may be set for trial before the court. . . ."
12 O. S. 1941 § 556 provides:
"Issues of law must be tried by the court, unless referred. Issues of fact arising in actions for the recovery of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered, as hereinafter provided."
The question of waiver of a jury under the above statutory provision has been considered by this court in a number of cases and the waiver has been sustained whenever expressly shown by the record or when by silence or conduct the complaining party has been deemed to have consented to a trial by the court. J.R. Watkins v. Miller, 176 Okla. 20, 54 P.2d 314; Greer v. West, 173 Okla. 427, 48 P.2d 1043; Federal Surety Co. v. L. B. Adams Lumber Co., 170 Okla. 445, 40 P.2d 1057.
The judgment imports absolute verity. It shows that the right to a trial by jury was waived. The alleged error of the court in denying jury trial is wholly without merit. The appeal is dismissed as frivolous.
HURST, C.J., and RILEY, BAYLESS, WELCH, CORN, and GIBSON, JJ., concur.