
    OAHU RAILWAY & LAND COMPANY, A CORPORATION, v. KOLOHANA KAILI.
    No. 1236.
    Reserved Question From Circuit Court First Circuit. Hon. J. J. Banks, Judge.
    Submitted March 23, 1920.
    Decided March 24, 1920.
    Coke, C. J., Kemp and Edings, JJ.
    
      Jury — right of trial by.
    
    One of-the parties to a cause having waived his right to a trial by jury and this waiver having been acquiesced in by the other party the status of the cause became fixed as one to be tried without a jury and this status would remain during the life of tne litigation and could only be changed by consent of both parties.
    New Trial — effect of order granting.
    
    The granting of a new trial does not confer any new right but merely relegates the parties to their former status.
   Opinion op the court by

Coke, C. J.

This cause conies up from the circuit court of tlie first judicial circuit on a reserved question. An. action of ejectment was instituted by the plaintiff against tbe defendant and after issue was joined and within tbe time prescribed by law tbe defendant demanded in writing a trial by jury. Subsequently, and before tbe trial of the cause, the defendant interposed a written waiver of bis right to a jury trial and tbe cause was tried by tbe circuit court without a jury. Tbe decision was in favor of tbe defendant. Plaintiff thereupon carried tbe case to tbe supreme court on a bill of exceptions which was sustained and tbe cause was remanded to tbe circuit court for a new trial. When tbe cause came on for retrial before the circuit court tbe defendant interposed a motion demanding a trial by jury, which motion nms opposed by plaintiff. The question reserved for our consideration is whether under the facts as above outlined the defendant is now entitled to a trial by jury. Section 2379 E. L. 1915 reads: “Demand for jury. Either party to a civil suit may demand a trial by jury by a written document filed in court within ten days after the case is at issue; provided, however, that if no such demand as aforesaid shall be made for a trial by jury parties to said cause shall be deemed to have waived trial by jury.”

This statute was before us for consideration and application in the case of Trust Co. v. Cabrinha, 24 Haw. 777, and much that is said in that opinion applies with force here. The following excerpts we think are particularly applicable: “We are satisfied that an interpretation of the statute in accordance with the legislative intent requires us to hold that the filing of a demand for a jury trial by either of the parties within the time prescribed by the statute fixes the status of the case as one to be tried by a jury. * * It Avould thereafter take the same character of action by the parties to change that status as. Avas required under the statute prior to 1909. At that time it required a waiver by both parties to change the status of the case from a jury case to a jury-waived case. So we think that where the status of the case has been fixed as a jury case by the filing of demand for a jury tidal by one of the parties to the action that such status cannot be changed éxcept by agreement of the parties or by conduct amounting to a waiver of their right to a jury trial.” The defendant having waived his right to a trial by jury and the plaintiff having acquiesced therein and assented thereto the status of the case then became fixed as one to be tried without a jury and this status Avould remain during the entire life of the litigation unless changed by consent of both parties.

Frear, Prosser, Anderson & Marx for plaintiff.

E. K. Aiu, and A chi & Achi for defendant.

Tlie defendant’s position is that the waiver by him of his right to a trial by jury only related to the first trial and that upon the cause being reversed and remanded to the circuit court for a new trial - his former waiver ceased to be effective and he was then entitled upon demand to a trial by jury. We can see no force in this contention. The waiver of the right to a trial by jury filed by the defendant was not temporary nor effective only during certain stages of the proceeding. It was permanent in character and is binding upon the defendant as long as the cause is at issue. The sustaining of the exceptions by the supreme court had the effect of granting a trial de novo before the circuit court but no new rights were thereby conferred upon the parties. They were merely relegated to their former status. See Kearns v. Simpson, 83 N. J. L. 221. The supreme courts of Alabama and Massachusetts, as well as the supreme court of New Jersey, in all of which States statutes similar to our own exist, have by recent opinions determined the question here presented conformably to the views above expressed. See Brock v. Louisville & N. R. Co., 122 Ala. 172; Thompson v. King, 173 Mass. 439. See also Tracy v. Falvey, 92 N. Y. S. 625.

Our answer to the reserved question is that for. the foregoing reasons the defendant is not now entitled to a trial by jury of the above cause.  