
    John Latimer v. Martin Motter.
    1. In an action of replevin before a justice of the peace, where a trial by jury is not demanded, the justice has power to hear and determine the action, and make such findings and assessment of damages as might have been made by a jury, had one been demanded.
    2. In such action, where it appears from the record that the right of possession only was found hi the defendant, and that the value of the property was agreed upon by the parties, it can not be said as a matter of law, that the defendant’s damages may not have been equal to the value-of the property.
    Motion for leave to file a petition in error to reverse the-judgment of the District Court of Huron county.
    The original action was brought by Motter against Latimer before a justice of the peace to recover possession of certain articles of personal property, which were claimed to be unlawfully detained by Latimer, and which were valued by the appraisers, summoned' by the constable, at $295.
    
      The property was delivered to Motter, who entered into-an undertaking as required by statute.
    On the trial, which was had to the justice of the peace,, that officer found that Latimer was entitled to the possession of the property, and assessed his damages at $295, the value of the property as agreed upon by the parties, for which amount and costs judgment was rendered against Motter.
    The judgment of the justice of the peace was affirmed by the Court of Common Pleas, on a petition in error filed therein by Motter, on whose petition the District Court subsequently reversed the judgment of the Court of Common Pleas, and remanded the cause for further proceedings,, and therefore this motion:
    
      Osborn § Grosscut for the motion.
    The judgment below is reversible only if there be an inconsistency between the finding of facts and the judgment of the court on those facts. 7 Ohio (pt. 2), 232.
    The agreement as to the value of the property was intended for, and was a substitute for, the intervention of a jury. The plaintiff’s presence at, and permission of trial by the justice, without a jury, is a waiver of a jury. JEllithorpe v. Buck, 17 Ohio St. 72; Hauser v. Metzger, 1 C. S. C. 164.
    The record must show that a jury was demanded and refused to make a case of error. Klanne v. Bradstreet, 2 Handy, 77.
    
      J. H. Dickson, contra:
    1. The justices’ act gives no power to the justice to assess damages where judgment is rendered against the plaintiff, or he otherwise fail in the action. Secs. 147, 148, S. & S. 417; Wolf v. Mayer, 12 Ohio St. 432 ; Hewson v. SaMn & Smith, 7 Ohio, 587.
    2. The record does not show that a jury was waived.
   ,Rex, J.

It is claimed by the defendant in error that the justice of the peace erred in proceeding, after finding that the right to the possession of the property was in the defendant, to assess his damages, without the intervention of a jury. "We do not think so.

The justices’ code contains no limitation on the power of a justice to hear and determine any civil action, to which his jurisdiction extends, in which a trial by jury is not demanded.

The suit in replevin is a civil action, and is therefore subject to the same rules as other civil action's before a justice; and secs. 147 and 148 of the justice’s code are only applicable where a trial by a jury is demanded.

Under the code of civil procedure, all issues of fact, arising in actions for the recovery of money, or of specific real or personal property, are triable by a jury, and must be so tried, unless the trial by jury is waived, or a reference is ordered, as provided in the code ; whilst, under the justices’ code, all actions within the jurisdiction of the justice are triable by him, unless a trial by jury is demanded; and, hence, the principles- laid down by this court, in Wolf v. Meyer, 12 Ohio St. 432, are not applicable to the action of replevin before a justice of the peace.

It is also claimed that the justice erred in assessing the defendant’s damages at the full value of the property, as returned by the appraisers.

"We see no error in this. It can not be assumed, as a matter of law, that, because the right of possession only is found in the defendant, the whole value of the property is not the proper measure of his damages. Eor instance, if the property is held by an officer under an execution, and the amount of the execution is greater than the value of the property, his damages would be the full value of the property.

The transcript of the proceedings before the justice shows that the parties were present at the trial; that witnesses were examined and record evidence submitted; but it does not appear that a trial by jury was demanded l^y either of the parties. In the absence of any showing to the contrary, by exception or otherwise, on the record, it will be presumed that such trial was not demanded.

We are therefore of opinion that the justice of the peace did not err, either in proceeding to hear and determine, the cause without the intervention of a jury, or in assessing the value of the property as the measure of the ■defendant’s damages.

The motion is granted, the judgment of the District Court reversed, and that of the Court of Common Pleas affirmed.

Welch, C. J., White, Gtlmore, and McIlvaine, JJ., concurred.  