Opinion
January Term, 1897.
E. Dayton, for the appellant.
C.M. Woolsey, for the respondent.
The judgment of the County Court and of the Justice's Court should both be reversed.
The justice's record states the justice's version of what took place at the time of the disagreement and discharge of the jury, and of the agreement to adjourn to the subsequent day. The written motion, which contains a statement of facts as to what took place before the court at such time, and which is at variance with the justice's record, cannot be taken and considered by the court upon appeal as a correct statement of the facts, upon which the appeal is to be heard and decided.
Such appeal must be heard upon the record of the justice; if that is not correct, either party has his remedy by moving for a further return. The record, if incorrect, cannot be changed by filing, upon a motion, a statement reciting facts different from those set forth by the justice.
The fact that the defendant had not previously demanded a jury trial, coupled with the fact that the plaintiff announced that he waived his right of trial by jury, and the statement of the defendant's attorney that "he did not demand a jury," seems to me amply justified the justice in adjourning, without issuing a new venire, to the time agreed upon by the parties, and that thereby he did not lose jurisdiction.
If the defendant's attorney, while stating that he did not demand a jury, meant to be understood by his statement, "that he wanted the case tried according to law," that he thereby did not waive a jury trial, but desired the case to be again submitted to a jury, he should have made his purpose and intent more distinct and clear. Parties desiring to raise objection, or to seek rulings of the court, must make their objections and requests plain and precise, so that there can be no misunderstanding, and neither the court nor their adversaries be misled.
In this case, both the court and the plaintiff were justified in believing that the defendant did not require a trial by jury, and the defendant, in consenting to an adjournment without a venire for a new jury being issued pursuant to the provisions of the Code of Civil Procedure, lost all right to object to the jurisdiction of the court to try the case on the adjourned day without a jury.
The judgment of the County Court and of the Justice's Court should be reversed, with costs and disbursements of this appeal, and costs and disbursements in the County and Justice's Courts.
All concurred.
Judgment of the County Court and of the Justice's Court reversed, with costs and disbursements of this appeal, and costs and disbursements in the County Court and Justice's Court.