
    Railway Co. v. Construction Co.
    
      Practice — Pleading—Interrogatories attached to — Order of court as to answering — Effect and force of — Trial by jury — Right to, may be waived by party appearing, in absence of opposite party.
    
    1. An order of the court that interrogatories attached to a pleading be answered on or before a certain time, and, in default thereof, that the action stand dismissed, does not execute itself, and the action continues upon its docket until dismissed by the court.
    2. Section 5204, Revised Statutes, which provides, among other things, that in an action arising upon contract, trial by jury may be waived by the consent of the party appearing, when the opposite party fails to appear by himself or attorney, does not impair the right of trial by jury, and is therefore valid.
    3. Questions not made in the court of first instance nor assigned for error in the circuit court, will not be considered in this court.
    (Decided Dec. 23, 1892.)
    Error to the Circuit Court of Ross county.
    The Western Railway Construction Company commenced an action August 31, 1876, in the Court of Common Pleas of Ross county, against The Springfield, Jackson & Pom-eroy Railroad Company to recover $322,650.00 damages for an alleged breach of a written agreement entered into between the parties, October 22, 1875, under which the construction company had agreed to construct the road of the railroad company from Springfield, in Clark county, to Jackson, in Jackson county, Ohio. It is averred that the plaintiff commenced the work in November, 1875, and that certain estimates were made of the work done, some of which were paid and others not, and that on April 14, 1876, the defendant “wrongfully and without just cause or excuse cancelled the contract and attempted to discharge plaintiff from the obligations thereof, and refused to permit, and prevented the plaintiff from proceeding further with the work of constructing said railroad.”
    Issues of fact were made by the answer of the defendant and a reply of the plaintiff. To the answer were also appended certain interrogatories to be answered by certain officers of the plaintiff. A demurrer to these interrogatories having been overruled by the court, it made an order requiring them to be answered on or before Feb. 7, 18.85, and, in default thereof, ordered that the “action stand dismissed at plaintiff’s costs.” The defendant, claiming that these interrogatories had not been answered as required, made a motion to dismiss the action, which was overruled by the court. To which the defendant excepted, but did not prepare and tender a bill of exceptions setting forth the facts upon which the court acted. The case thus stood until the April term, 1886, at which, as appears from the record, on August 9, the defendant made default; and the plaintiff in open court waiving a jury, submitted the issues upon the pleadings and the evidence to the court, which on consideration found for the plaintiff; and, after deducting the sum of $122,000.00, the amount of a subscription of the plaintiff to the capital stock of the defendant, rendered judgment for the sum of $200,650.00, the balance of the damages assessed. At the same term a motion was made to set aside the judgment and to re-instate the action, which was overruled.
    On error the judgment was affirmed in the circuit court, the principal assignments relied on being, 1, that the court erred in overruling the motion to dismiss the action, under the order it had made, that if the interrogatories were not answered by the time fixed, the action should stand dismissed; 2, that the court erred in rendering judgment when by the terms of the .said order the cause stood dismissed; 3, that the court erred in trying the issues without submitting them to a jury.
    The same errors are assigned and relied on in this court. To'which has been added, by printing an additional part of the record and filing the same a short time before the day fixed for oral argument, an assignment that the contract sued on is illegal and void, made so, as claimed, by the agreement of the plaintiff to subscribe $122,000.00 to the capital stock of the defendant, to be paid for in the construction of the road under the agreement.
    
      
      R. A. Harrison and W. A. Hitchins, 'for plaintiff in error.
    
      Alfred Yaple and W. H. Woodrow, for defendant in error*
   By the; Court.

As no bill of exceptions was taken, setting forth the facts upon which the court acted in overruling the motion to dismiss the action on the ground that the interrogatories had not been answered as required, the ruling of the court upon the motion cannot be reviewed. The order as made could not execute itself. Whether the interrogatories had been answered, or whether the'plaintiff had been prevented' by unavoidable accident from complying with it in the time named, were questions that might have arisen on the motion, and would be for the consideration of the court before acting on it. If either was true the motion was properly overruled. Therefore, in the-absence of any showing in the record as to what the facts were, we are bound to presume that they were. sufficient to warrant the court in refusing to dismiss the action. This disposes of the second as -well as the first assignment. The record does not show that the action was dismissed, hence we cannot assume that the court committed the error assigned, that is to say, that it rendered judgment after the action had been dismissed.

Did the court err in trying the issues, instead of submitting them to a jury? We think it did not. Though the right of trial by jury is declared by our constitution to be inviolate, still it may be waived, and it is therefore competent to the legislature to provide the mode in which it- may be done, as if may regulate the exercise of any other right. Thus a trial may be had in a civil action before a justice of the peace without a constitutional jury, because the defeated party may obtain a jury by taking an appeal to the common pleas; and so the compensation of an owner for property taken for the use of a public road, may be assessed in the proceedings before the county commissioners, because, if not satisfied with the allowance made by the viewers, he may have his compensation assessed by a jury by taking an appeal to the probate court. In none of these and similar cases, has the right been regarded as impaired, though it can be secured only by taking an appeal. The inconvenience of being compelled to take an appeal has not been regarded as impairing the right, Section 5204, Revised Statutes, provides that in actions arising on contract, trial by jury may be waived, “ By the consent of the party appearing, when the other party fails to appear at the trial, by himself or attornéy.” All persons are presumed to know the law. The defendant is therefore presumed to have known, that by failing to appear, the plaintiff could, if it saw fit, waive the calling of a jury to try the .issues and submit them to the court, and to have consented that if it saw fit, it might do so. The requirement that it should attend and demand a jury if it required it, placed the defendant under no greater inconvenience than a party is placed who is required to take an appeal to secure a jury; in the latter case a bond is required.

Such has been the construction placed on the law from the time it was incorporated in the code in 1853; and we have no knowledge of this construction, or of the constitutionality of the statute, having been called in question prior to this time. The hardship suggested of a party being pre-rmnted by unavoidable accident from attending and demanding a trial by jury, is without weight; as, in such case, he would have the right to have the finding and judgment set aside and a new trial granted, whether the trial had been had before the'court or a jury.

The question as to the validity of the agreement between the plaintiff and the defendant, for the breach of which the suit below was commenced, was not presented or considered in the common pleas nor in the circuit court; nor, in this court, until a short time before the case was reached for oral argument; and, also, after the plaintiff in error had obtained an order for an abridgment of the printing of the record to such parts of it as raised the questions already considered. In view of these facts, and the established rule of the Court-not to consider questions unless assigned for error in the courts below, we decline to consider the question as to the validity of this contract; and express no opinion upon it.

Judgme'rit affirmed.  