
    Polly Worthington, Admx., et al. v. Nashville, Chattanooga & St. Louis Railway.
    (Nashville.
    December Term, 1904.)
    JURY TRIAL IN CHANCERY. On second trial, though, expressly -waived on first trial.
    The waiver of a jury demanded in the hill made by agreement at or before the first trial that the chancellor'might try the case as a jury does not deprive the defendant of the right to demand a jury on a second or new trial, especially where it is not shown that there was any rule regulating the matter.
    Code cited and construed: Secs. 4611-4616, 6282-6286 (S.); secs. 3602-3605, 5215-5219 (M. & V.); secs. 4465-4469 (T. & S. and 1858).
    Cases cited and approved: Allen v. Saulpaw, 6 Lea, 481; Cooper v. Stockard, 16 Lea, 140; Cheatham v. Pearce, 89 Tenn., 688; Stedham v. Stedham, 32 Ala., 525; Martin v. King, 72 Ala., 359; Cross v. State, 78 Ala., 432; Benbow v. Robbins, 72 N. C., 422; Burnham v. Railroad, 88 Fed., 627; Brown v. State,-89 Ca., 340; Carthage v. Buckner, 8 Ill. App., 152.
    Case cited and disapproved: Lananhan v. Heaver (Md.), 26 Atl., 866, 20 L. R. A., 759.
    PROM WARREN.
    Appeal from the Chancery Court of Warren County. —Thos. M. McConnell, Chancellor.
    
      Smith & Smith, for complainants.
    Whitson & Merger and Claude Waller, for defendant.
   M'r. Justice Wilkes

delivered the opinion of the Court.

The bill in this case was, in substance, to enjoin the railroad company from setting up an accord and satisfaction claimed to have been entered into by complainants, as the widow and next of kin of Wade Ledbetter, settling their claim against the railroad for the negligent killing of said Ledbetter.

The bill demanded a jury for the trial of all issues of fact.

When the case came on for trial the complainants waived their right to a jury, and agreed with defendant that the chancellor might try the case as a jury, his findings to have the same weight and effect as a finding of facts by a jury. The defendants agreed to this, and an order was entered of record to that effect.

The chancellor, thus sitting as a jury, made the following findings of fact and rendered the following judgment, to-wit:

“The court, sitting as a jury, is of opinion and finds that the release and compromise entered into between complainants and defendant, as set out in complainants’ bill, and which was reduced to writing finally of date August —, 1899, considering tbe time when it was first made — tbe nest day after tbe death of complainant Polly’s son (when sbe was naturally in deep distress) —tbe ignorance and poverty of all tbe complainants, tbe small amount paid by respondent, and tbe want on tbe part of complainants of full and fair information as to tbe facts of tbe alleged killing, was unfair, unjust, and amounted to a fraud on complainants, and therefore is null and void, and is not binding on complainants, and is so decreed.”

Tbe court further decreed said compromise and release be annulled and set aside, perpetually enjoined defendant from relying on same as a defense to a recovery of damages in case of Polly Ledbetter, administra-trix, against defendant, in tbe circuit court of Warren county, and from pleading said accord and satisfaction as a defense in said suit.

From this decree defendant appealed to- tbe supreme court, where tbe case was beard on tbe 7th day of March, 1904, and tbe court held that tbe judgment of tbe chancery court was manifestly erroneous, “in that tbe chancellor, sitting as a jury, failed to find all tbe material issues raised in tbe pleadings.”

Tbe cause was remanded for a new trial.

Upon this remand and on tbe new trial defendant demanded a jury to try tbe issues of fact, which was refused by tbe judge, because, in bis opinion, defendant bad waived tbe right to make such'demand on tbe first trial, and bad elected to try before tbe judge as a jury, ' and this election remained in force upon tbe second trial, and could not be withdrawn.

Tbe defendant excepted to this order of tbe court, and tbe chancellor proceeded to try tbe case tbe second time as a jury under the original agreement.

Upon this trial the chancellor found all tbe issues of fact in favor of tbe complainants, set aside tbe compromise and release, and enjoined defendant from relying on same in any legal action for tbe recovery of damages.

Defendant prayed, and was granted, an appeal, and assigns as error this action of tbe court in refusing to allow a jury upon tbe second trial.

Tbe assignment is as follows:

“Tbe chancellor erred in disallowing defendant’s demand for a jury to try tbe issues of fact in this cause, and in adjudging that tbe defendant was precluded from demanding a jury because of tbe agreement made at tbe September term, 1902, previous to first trial of tbe cause, by which it was agreed that tbe chancellor mig'ht try tbe case as a jury upon tbe questions of fact, instead of questions of fact being tided by jury demanded by complainants.”

The provisions of our statutes in regard to jury trial in chancery causes are as follows: .shall be submitted to one jury.” Code 1858, se,c. 4465; Shannon’s Code, sec. 6282.

“Either party to a suit in chancery is entitled, upon application, to a jury to try and determine any material fact in dispute, and all tbe issues of fact in any case
“If the demand is made in the pleadings the canse shall be tried at the first term before a jury summoned instanter, in the same way that jury causes are tried at law.” Code 1858, sec. 4466; Shannon’s Code, sec. 6283.
“If the demand is only made after the cause is ready for hearing, the trial will be before a jury summoned instanter upon the like evidence as a suit at law, together with such parts of the bill, answers, depositions, and other proceedings in the cause, as the court may order.” Code 1858, sec. 4467; Shannon’s Code, sec. 6284.
“The issues shall be made up by the parties under the direction of the court, and set forth briefly and clearly the true questions of fact to be tried.” Code- 1858, sec. 4468; Shannon’s Code, sec. 6285.
“The trial shall be conducted like other jury trials'’ at law, the findings of the jury having the same force and effect, and the court having the same power and control over the findings, as on such trials at law.” Code 1858, sec. 4463; Shannon’s Code, sec. 6286.

It is held in Allen v. Saulpaw, 6 Lea, 481, that either party to a suit in chancery is, upon application, entitled to a jury to try and determine any material fact in dispute, and that the demand for a jury may be made at any time before the case is in fact heard by the chancellor.

This case is approved and followed in Cheatham v. Pearce, 89 Tenn., 688, 15 S. W., 1080, and it is said that in the absence of any rule of court regulating the matter a jury may be demanded, at any time before the cause is beard by the chancellor.

It is not shown that the chancery court of Warren county has any rule regulating the matter.

The exact question presented, however, is whether the waiver of a jury and agreement that the chancellor may try as a jury, made before the first trial, may be enforced, over the objection of either party, in any subsequent trial.

It is proper to remark that the statutes regulating the time and manner of demanding jury trials in law cases, embraced in sections 4611 to 4616, Shannon’s Compilation, do not apply to the chancery court. Cheatham v. Pearce & Ryan, 89 Tenn., 688, 15 S. W., 1080; Cooper & Stockell v. Stockard, 16 Lea, 140.

The rule is stated in Thompson on Trials, vol. 1, sec. 2, as follows:

“The prevailing opinion seems to be that the waiver of a jury at one term will not estop the party from claiming it at a subsequent term, or after a new trial has been granted.”

In the case of Martin v. King, 72 Ala., 359, the court says:

“The question is whether the defendants on the second trial are hound by an agreement to waive a jury entered into upon the first trial. It is our judgment that they are not concluded by such waiver. The agreement, being one in abrogation of a valuable constitutional privilege, must, for that reason, be strictly construed. It would require most liberal and enlarged construction to extend its operation beyond the particular trial apparently contemplated by it. It may be that the litigants would be willing for the particular judge who presided at one trial to act as both judge and jury, and be entirely unwilling to risk bis successor who might sit in judgment upon their rights at a subsequent term.”

To the same effect is the case of Stedham’s Heirs v. Stedham’s Ex’r, 32 Ala., 525, and the case of Cross v. State, 78 Ala., 432, which latter case refers to said case of Martin v. King.

The case of Benbow v. Robbins et al., 72 N. C., 422, was a civil action to recover damages for ponding water on plaintiff’s land. On the first trial a jury bad been dispensed with, it being agreed that the judge should find the facts and declare the law. The judge found the facts for plaintiff, but the case was reversed upon the question of the statute of limitations. The case again being beard in the lower court, instead of trying it anew, bis honor held that the parties were bound by the finding of facts at the former trial, which were'in favor of plaintiff, and gave judgment for the plaintiff, directing the defendant to take down bis dam. In reversing the case the court said:

' “Whether the facts are found by the jury or by the court, if it appears that the finding was influenced by misconstruction or misconception of the law, a new trial will be granted by this court on appeal. And in such cases the former trial goes for nothing. And where the first trial had by consent of parties, been by the court, a second trial must be by a jury, unless there be a new agreement that the court may try.”

The case of Burnham et al. v. North Chicago St. R. R. Co., reported in 88 Fed., 627, 32 C. C. A., 64, was a suit brought to recover the price of a street car traction motor constructed by the plaintiffs for the defendant. Upon the first trial a jury was waived, and case submitted to the court for trial without jury,' and the stipulation to waive jury was followed by an order of the court to that effect. A judgment was rendered by the court upon the trial of the case, and the case taken by writ of error to the United States circuit court of appeals, where the judgment was reversed, and a new trial ordered; the case being reported in 88 Fed., 627, 23 C. C. A., 677. On the second trial the plaintiffs asked for a jury trial, which request was denied, to which ruling exception was taken. On appeal the court of appeals held:

“The stipulation to waive a jury, and to try the case before the court, only had relation to the first trial. There could be no presumption then that there would ever be a second trial; and therefore it should not be presumed that the parties, in malting the stipulation, had in mind any possible subsequent trial after the first, to which the stipulation could refer.”

And again:

“A stipulation to waive followed by an order of the court is not in tbe nature of a private contract founded upon a consideration which can only he set aside for fraud.”

See, also, Gross v. The State, 78 Ala., 430; Brown v. The State, 89 Ga., 340, 15 S. E., 462; 12th Ency. Plead. & Prac., 270.

In the case of Carthage v. Buckner, 8 Ill. App., 152, it is said:

“It. appears that on the first trial the parties entered into a written stipulation of facts agreed upon as proven on the trial, and also that*a jury should be waived and the case submitted to the court for trial. On the second trial appellant claimed that under such stipulation a jury should again he waived and the case be tried by the court, and entered a motion to that effect. The action of the court in overruling this motion is one of the errors assigned. In this, we think, no error was committed. The agreement to waive a jury only bound the parties to the mode adopted — of trial by the court — to that one trial. When the case was remanded by this court for another trial in the court below, both parties were restored to their original right of trial by jury. Each party is entitled to as many juries as there are trials, and a waiver of a jury on one trial is expended by that trial.”

There are respectable authorities holding a contrary doctrine, notably the case of Lananhan Heaver (Md.), 26 Atl., 866, 20 L. R. A. 759. though this case is not directly in point. See, also, 12 Ency. Pleading and Practice, 270. '

We are of opinion that npon tbe retrial either party had a right to a jury, and such right could not be denied.

There is therefore no error in the decree of the court of chancery appeals, and it is affirmed.  