
    RIGHT TO TRIAL BY JURY.
    Circuit Court of Hamilton County.
    Security Insurance Co. v. Michael et al.
    Decided, March, 1911.
    
      Constitutional Law — An Invalid Statute Relating to Jury Trials — Demand for a Trial by Jury Not Waived, When — Actions at Law and in Equity.
    
    1. The filing in an action at law for money of an answer which is no more than a defense to the petition does not change the action to one in equity.
    2. Section 11466. providing when a jury shall be deemed to have been’ waived, pertains to a subject of a general nature, and is rendered invalid by reason of the fact that by its terms it applies to Hamilton and Cuyahoga counties only.
    3. It is error to refuse a demand for trial of an issue of fact to a jury, where there was no other reason for the refusal than that the demand was not'made until the trial had begun and was apparently made for purposes of delay.
    
      J. Louis Kohl, for plaintiff in error-.
    
      C. A. J. Wallcer, contra.
    Swing, J.; Smith, P. J., and Jones, J., concur.
   The case went to trial in the court below on the answer and cross-petition of Michael, the insurance company having dis-, missed its petition. This petition was by consent of parties then" filed as an answer to the answer and cross-petition of Michael, which petition was for money only. The answer of the insurance company was nothing more than a defense to Michael’s petition for'money and could not in any way change Michael’s action, which was one in law, to an action in equity The case waS therefore one to be tried by a jury unless a jury was waived. 11379, General Code.

Section. 11466, General Code, by its terms applies to Hamilton and Cuyahoga counties .only. Its subject is of a general nature and it should apply to all the counties of the state and have a uniform operation. For lack of uniformity of operation we think the law is invalid.

The Security Insurance Company demanded a trial by jury, which the court refused to grant. We are unable to see how this right of trial by jury can be held to have been waived by the consent of the parties in this case. After 'the trial was commenced the jury trial was demanded. The real purpose of the company may have been for delay, but in ■demanding trial by jury the company insisted only on having the trial in accordance with the terms of the statutes, and the purpose with which it was made can not affect the right. The insurance company went further than the requirements of the statute. The language of the statute is that it shall be tried by a jury unless a jury is waived.'

No doubt a waiver of trial by-jury may be done without an express waiver, but here a jury trial was insisted on.

In denying to the insurance company a jury trial we think the court committed error, for which the. judgment should be reversed. . ' ■ .  