
    Bonewitz v. Bonewitz.
    
      Trial by jury—May be waived—How— When demand for should be made.
    
    1. A party may waive his right to a jury trial by acts, as well as by words.
    2. And where, in a case of which the court of common, pleas, having jurisdiction of the parties, may also, by consent, acquire jurisdiction to try the cause without a jury, the record shows that the parties appeared, and neither demanded nor waived a jury, but without objection submitted the cause to the court upon the . pleadings, evidence, and argument of counsel, it is not error for the court to proceed to final judgment in the case.
    
      Z. An objection by the defeated party, first made after such.submission and judgment, that his cause was not tried to a jury, comes too late.
    (Decided June 13, 1893.)
    Error to the Circuit Court of Van Wert county.
    In the petition the plaintiff in error, who was plaintiff below, set out an agreement in writing, of which the following is a copy:
    “ Van Wert, Ohio, May 26, 1877.
    “ One day after date, I promise to pay to Mrs. Elizabeth E. Bonewitz, or her heirs or assigns, thirteen hundred dollars ($1,300.00), for value received. I also hereby agree for myself, myi- heirs and -assigns, that upon the presentation of this obligation to me, my heirs or assigns, by her or her heirs or assigns, to take up this obligation and in lieu thereof, to surrender to her, her heirs or assigns, one quarter interest in the business of the firm of Bonewitz, Schumm & .Co., as that interest may appear from the books of said firm, after deducting all expenses, losses and liabilities, and making capital stock equal as between parties—that is to say, she would have an interest of thirteen hundred dollars in the capital stock and one-fourth part of the net gains or losses as the case may be.
    [sear.] “D. R. Bonewitz.”
    She averred further, in substance, that at the time of the making of the agreement, she was a married woman; that the defendant, .one O. P. Bonewitz and Uouis G. Schumm, had, about that time entered into a partnership to deal in dry goods, etc., under the name of Bonewitz, Schumm & Co.; that defendant urged her to give him the money to invest in the business of the firm, representing that she should be a dormant partner, and have a fourth interest, and relying upon those representations, and agreeing thereto, she gave him said money, and thereupon defendant executed the writing. Subsequently, P. Bonewitz and Schumm retired from the firm, the defendant purchasing their interest and continuing the business, the plaintiff still retaining her one-fourth interest upon the assurance of defendant that her interest would not be affected by the change, and the business had been so conducted to a time shortly before the commencement of the action; that defendant now denies that she has any interest in the business, and refuses to allow her any participation therein. The firm has been successful; is possessed of a valuable stock of goods, and has a large amount of debts owing to it, and a valuable good will, and since the plaintiff so entered, the partnership has gained a large amount of profits, the exact amount of which plaintiff cannot tell, though she believes and charges, exceeds fifty thousand dollars, all of which defendant has kept and appropriated, and refuses plaintiff access to the books of the firm. No part of the $1,300.00 has ewer been paid to her. The prayer was that the contract be specifically enforced; that she be deemed to be a partner, and then that defendant be compelled to account with her, and pay what may be coming to her; but if she be not entitled to such remedy, then for judgment for $1,300.00, and interest from May 27, 1877.
    By his answer, defendant admitted that he received $1,300, but averred that the money, which was received on account of the husband of plaintiff, one Frank J. Bonewitz, and not on account of plaintiff, has been fully paid to said Frank J., and took issue 'on the other allegations of the petition. Further answering the defendant alleged:
    “That he at no time to his knowledge signed the pretended contract set out in the plaintiff's petition, providing that the plaintiff could on the surrender of said pretended contract acquire an interest in the business of Bonewitz, Schumm & Co., and which pretended contract she asks to have specifically enforced, in this action, and he therefore denies that he did sign the same, and he avers that if his name attached to said pretended contract is his genuine signature, it was procured by fraud and misrepresentation, and without his consent, and without his knowledge and wholly without consideration. Wherefore the defendant prays that said pretended contract be declared fraudulent and void, and that the same may be canceled, and that the defendant go hence and recover his costs."
    The new matter was traversed by a reply.
    In the common pleas it was found, and stated in the journal entry:
    “That the cause coming on for trial came thereupon the parties and their attorneys, and neither party demanded or waived the interposition of a jury, but without objection submitted the cause to the court upon the pleadings, evidence and argument of counsel.” The court then found for the plaintiff, and rendered judgment for $1,300, interest, and costs, but; found against her as to the alleged partnership. Motion for new trial by defendant was overruled. Error was then prosecuted b3r him to the circuit court where the judgment of the common pleas was reversed, and the cause remanded.
    
      G. M. Saltsgaber, for plaintiff in error.
    
      H. G. Richie, for defendant in error.
   Spear, J.

The ground of error alleged in the circuit court was that the common pleas erred in proceeding to trial without the intervention of a jury.

To sustain the judgment of the common pleas, it must appear, either that a jury was waived, or that the issues were such that the cause could of right be tried by the court without a jury.

Section 5130, Revised Statutes, provides that' “issues of fact arising in actions for the recovery of money only, * * * shall be tried by a jury, unless a jury trial be waived,” etc. And, by section 5204, it is provided that, in actions arising on contract, trial by juiy may be waived, (1) by consent of the party appealing, when the other party fails to appear, (2) by written consent filed with the clerk, or (3) by oral consent in open court, entered on the journal.

It is insisted by counsel for plaintiff in error that the record shows affirmatively, there was a waiver of a jury trial, while opposite counsel contend that the journal entry not only fails to show there was a waiver, but does affirmatively show that a jury was not waived.

The, language of the entry is that “ neither party demanded or waived the intervention of a jury, but without objection submitted the cause to the court upon the pleadings, evidence and argument of counsel.” There is apparent verbal contradiction in the entry, and the question is, what, taken as a whole, does the language import? Upon the whole case made, was there a waiver, or not? Attention is called to the case of Slocum v. Swan, 4 Ohio St. 161, as settling the question in this case. Plaintiff’s action was in ejectment. A plea of “not guilty” had been interposed. When the case was reached, the defendant came not, although, called, and the court rendered judgment for plaintiff without a jury, and, apparently, without proof. The statute then in force provided that “when the parties to such action shall agree to waive the intervention of a jury, and to submit the case to the court, it shall be the duty of such court to try and determine the facts," etc. Under such a statute, and upon such a record, this court held that the issue made could not be tried by the court without a waiver by the parties of a jury trial; that there was no such waiver, and reversed the judgment. The real question was hardly germain to our case. It was whether or not the absence of the defendant amounted to a waiver. The holding on that question can not materially aid in the solution of the question here presented, much less settle it.

We have examined the other cases cited by defendant’s counsel, but do not find them applicable to the present facts.

As already observed, the statute indicates several methods of showing waiver. Where the parties are present, (as in this case), there must be consent, and, if it be oral, it must be given in open court, and entered on the journal. When this sufficiently appears, there is, in law, a waiver. Does not just that thing appear here? We think it does. The parties were present. Without objection they “submitted the cause to the court upon the pleadings, evidence and arguments of counsel.” This means a trial’ of the cause. It means, also, that the parties consented to go forward and try the cause to the court, and their acts, in this regard, were entered on the journal.

To submit a cause to a court is an. affirmative act. It is to ask the court to hear the evidence, consider it, and apply the law. What more potent “consent” could be given than this? A jury was not demanded because, in all probability, the counsel and the court alike regarded it as a court, and not a jury, case. True, the entry says that neither party waived a jury. This language, in the light of the entire entry, naturally means, we think, and should be held to mean no more than that no waiver was made in words. And it is true that none was so made, but actions sometimes speak louder than words.

It was not until after the court had found and adjudged against the defendant that he discovered he had been prejudiced by not having his cause tried to a jury. His objection to the mode of trial, we think, comes too late. To sustain his claim would seem to be trifling with justice. He proceeded to trial, without objection, to a court having jurisdiction of the parties, and capable of being clothed with jurisdiction of the subject matter for all purposes, taking his chance of a favorable result, and can not, now that the chance has turned against him, be heard to question the authority of the tribunal to which he consented to submit his cause. He must be held to have waived his right to a jury trial, if he had such right. Nicholson v. Pim, 5 Ohio St., 25; Ellithrope v. Buck, 17 Ohio St., 72; Arvillest. Verner, 22 Ohio St., 872; Millers. Longrave, 26 Ohio St., 298; Culver v. Rodgers, 33 Ohio St., 537.

We think it was not error for the trial court to assume jurisdiction and try the issues. And as this holding disposes of the case, it is not important to consider whether, as a matter of law, either party had the right, under the pleadings, to demand a juiy.

The judgment of the circuit court will be reversed, and that of the common pleas affirmed.  