
    Edward N. Slocum v. Lessee of Gustavus Swan et al.
    Where, in an action of ejectment to recover “the old penitentiary lot,” in Columbus, E. N. S., the nature of whose possession does not appear in the record, was made defendant, entering into the common consent rule, and the then attorney-general signed a plea of not guilty, the record showed that, at a subsequent term, E. N. S. being called, came not nor further defended; that (a successor of the attorney-general who filed the plea having been '®appointed and qualified) “the attorney-general of the State of Ohio being also called, appeared, and declined further to defend the action;” and that “ neither party requiring a jury,” the court found E. N. S. guilty, and gave judgment for the plaintiff: Held, the issue made by the plea of “ not guilty,” could not be tried by the court. There was no waiver by the parties of a trial by jury.
    Petition in error to reverse a judgment of the court of common pleas of Franklin county, rendered at the June term, 1851.
    The case is fully stated in the argument of Mr. McCook, attorney-general, which follows.
    McCook, attorney-general, for plaintiff in error:
    The action below was ejectment, brought in March, 1847, for the recovery of a tract of “land in half-section No. 26, township No. 5, of range No. 22, refugee lands, so called, commonly known as the ‘ old penitentiary lot,’ in the city of Columbus.”
    At the April term, 1847, Slocum having been served with notice, appeared, entered the consent rule, confessing the lease, entry, and ouster, and was made defendant in room of the casual ejector. At the same time, the plea of not guilty was filed, signed “ Henry Stanbery, attorney-general, for defendant,” on which issue was joined.
    
      The land, in fact, belonged to the state, and Slocum was in possession as quartermaster-general; but this does not appear by the record, nor is it anywhere shown that the state was interested.
    The cause was continued from term to term until June, 1851, when, Mr. McCook being attorney-general, the record shows the following proceedings:
    “And now at this day, to wit, the day and year first herein aforesaid, came the plaintiff, by Mr. Backus, his attorney, and thereupon the said Edward N. Slocum, being three times solemnly *called to come into court and present his said defense, came not, nor further defends this action; and the attorney-general of the State of Ohio being also called, appeared, and declined to further defend this action; and thereupon, neither party requiring a jury, and the court being fully advised in the premises, do find that the said Edward N. Slocum is guilty of the trespass and ejectment laid to Ms charge, in manner and form as the said John Doe hath complained against him, and do assess the damages of the said John Doe, by means thereof, to one cent. Thereupon, it is ordered that the said John Doe recover against the said Edward N. Slocum, his said term yet to come, of and in the tenements aforesaid, with the appurtenances; and also his damages, so as aforesaid assessed, together with his costs.”
    Slocum having been turned out of possession on this judgment, this petition is brought to reverse it, and it is now assigned by the plaintiff as error—
    1. That after plea pleaded, judgment was rendered against the defendant by default.
    2. That the court inquired of a question of fact in issue by a plea, without the intervention of a jury.
    I do not know how to designate this judgment, but think I can show that it has been obtained in a mode unknown to the common law, or to the statutes, whether it is claimed to be supported as a judgment by default, by consent, or by trial on' submission by the court.
    The only mode of ascertaining the fact on an issue joined, known to the common law, was by jury. If no issue was joined, and judgment was rendered by default, damages were also to bo assessed by a jury. The same practice prevailed in Ohio at the time of rendering the judgment below, except so far as modified by our statutes.
    To sustain this judgment, it must have been rendered in one of three modes:
    
      1. By consent. And this may be obtained in two ways—
    *1. By consent of the party. This consent must expressly appear by the record, for nothing is to be presumed to sustain such a judgment. In this respect, it is like a judgment by default.
    Slocum, the defendant below, did not consent; for in person he was not in court, and it was not necessary he should be, as he had filed a plea. The record, showing that “ he was three times solemnly called to come into court and present his said defense, came not,” is conclusive that he did not consent. The words which follow in the record, “ nor'further defends this action,” are mere mockery, when he had tendered an issue, in an action where the plaintiff recovers on the strength of his own title, and not on the weakness of that of his adversary.
    2. By consent of the attorney. The novel practice of calling the attorney, appears in this ’record for the first time in Ohio. But they do not call the attorney of Slocum; but “the attorney-general of the State of Ohio,” being also called, appeared, and declined to further defend this action. The record shows no connection between the state and this proceeding. Henry Stanbery was the attorney of Slocum, as appears by the record, and the affix of his then office, in 1847, to the signature of the plea, is mere descriptio personce.
    
    But even if, at the time of this judgment, the attorney-general for the time being had béen the attorney of record, he does not consent. Consent is an affirmative act, which is wanting here; the record shows only that “ he declined to defend this action.”
    I do not admit the authority of counsel, as such, to consent to judgment, their employment being to prosecute or defend the rights of their clients in courts, not to consent them away. The consent shown by the record must be that of the party; it may be expressed through the counsel, but is, nevertheless, the consent of the party, and must so appear.
    II. By default. In the action of ejectment, the only provision for proceedings by default was against the casual ejector, *when the tenant in possession neglects or refuses, after notice, to confess the lease, entry, and ouster, and it is in these words:
    
      “ That the plaintiff, on affidavit of the delivery of the declaration in ejectment, shall have judgment against the casual ejector, unless the tenant in possession, or landlord or other proper person, shall apply to be made defendant, and enter into the common consent rule, within the term to which the tenant had notice to appear.” Swan’s Stat. 664, sec. 71. There could be no other default in this action on the part of the defendant, for, according to the practice in Ohio, the plea is filed with the consent rule. The other statutory provisions as to defaults have no application to this action, and do not help the judgment.
    If this judgment had been properly rendered by default, it would then have been competent for the court to assess the damages, the statutory provision being as follows:
    
      “ That where judgment shall be entered by default against the defendant, the court shall assess the damages, unless the plaintiff or defendant request a writ of inquiry.” Swan’s Stat. 671, sec. 98.
    But after an issuable plea, there could be no judgment by default whilst it remained on file. This is too clear for argument; but I refer to a few of the cases in which it is expressly ruled. Harris v. Muskingum Manufacturing Co., 4 Blackf. 267; Maddox v. Pullian, 5 Blackf. 205; Brown v. Hallenback, 2 Greene, 319; 1 Tidd’s Prac. 319.
    A proper plea having been filed,' it should have been disposed of.
    III. By trial. This trial must be by jury, unless, by the consent of the parties, it is submitted to the court, and the intervention of the jury waived.
    “ In any action, etc., which may be pending in any court of common pleas of this state, 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. Swan’s Stat. 691, see. 158.
    *The court will mark the difference between the language employed here, and that in the section before referred to, authorizing the court, in the case°of a default, to assess the damages, unless the plaintiff or defendant requests a jury. Swan’s Stat. 671, see. 98.
    In the one case, the court assesses the damages, unless one party demands a jury; in the other case, when an issue is to be tried, the court can not act, unless both parties waive a jury.
    In one case, the silence of the parties is sufficient; in the other case, they must expressly waive the right of trial by jury — a right guarantied by the constitution.
    Does the record in this case show any such waiver of right, or consent to the determination of a different tribunal ? The words of the record are, “ and neither party requiring a jury ” — the precise words adopted in the forms, for cases of default and assessment of damages by the court. This is an entry which could be made truthfully, if the party was absent or present, and yet his consent may have been withheld. The record should show affirmatively the act of the party waiving the trial by jury, and consenting to that by the court.
    Notwithstanding this was wanting, the court tried the issue tendered by the plea, and found upon it; or rather, as the record shows that no evidence of any kind was introduced, “the court being fully advised in the premises, do find that the said Edward N. Slocum is guilty of the trespass and ejectment laid to his charge, in manner and form as the said John Doe hath complained against him.” A distinct finding of the fact put in issue by the plea, for the trial of which the defendant below, at the only time when the record shows him to have been in court, had put himself upon the country.
    I ask, then, that this judgment be reversed. It can not be maintained, as a judgment by consent of parties, for the defendant was not there to give it; nor by default, for he had his plea upon file, which put the proof upon the plaintiff; nor by trial to *the court, for the record shows that the court had no authority to try it.
    (No other argument was submitted.)
   Thurman, C. J.

The issue made by the plea of “ not guilty,” could not be tried by the court, without a waiver by the parties of a jury trial. There was no such waiver. The judgment must be reversed, and a writ of procedendo awarded.  