
    BUTLER vs. KENNER & AL.
    An application for a jury, comes too late, when the court is about to pronounce judgment for want of an answer.
    Appeal from the court of the first district.
   Porter, J.

delivered the opinion of the court. This case was before us a few days since on the record brought up by the appellee. It is now again presented by the appellants.

There is neither statement of facts, bill of exceptions, evidence taken down by the clerk, nor certified by the judge, nor agreed on by the parties, nor error of law appearing in the proceedings.

East'n. District.

Feb. 1825.

It has been suggested that the latter appears, in the cause being decided on by the court, when the pleadings required it to be tried by a jury.

There is no foundation for this objection. The case originated on the 17th of July, in an application of the plaintiff to issue an execution on that part of a judgment which had not been enjoined; on the 26th it was called for argument, and continued by consent of parties until the 31st. On the 31st it was, on motion of the defendants, the plaintiff's counsel consenting; laid over to the 7th of August. On the day last mentioned, the defendants not appearing,it was submitted by the plaintiff without argument. On the 28th of the month the court gave its judgment, and on the same day after two continuances, and the court either had, or was ready to pronounce its judgment, the defendant filed an answer and prayed for a jury This the judge, in our opinion, most properly disregarded. The application to change the mode of trial came too late.

Hennen for the plaintiff, Grymes for the defendants.

We see nothing which will permit us to refuse the plaintiff’s demand, that the judgment of the court below should be affirmed with damages.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs, and ten per cent damages on the amount for which execution was ordered to be issued.  