
    MONTGOMERY v. HERRING.
    No. 28217.
    March 26, 1940.
    
      100 P. 2d 892.
    
    
      Orval Grim, of Cheyenne, for plaintiff in error.
    F. R. Blosser, of Cheyenne, for defendant in error.
   PER CURIAM.

This action, one for a money judgment on a promissory note, was instituted in a justice of peace court by the defendant in error, hereafter referred to as plaintiff, against the plaintiff in error, hereafter referred to as defendant. The defendant prevailed in the justice court, whereupon plaintiff took an appeal to the district court. The defendant filed in the district court a written demand for a trial by jury, which was overruled and denied. Trial was thereupon had to the court over the objections and exceptions of defendant and resulted in a judgment in favor of the plaintiff on March 26, 1937. The defendant filed a motion for new trial which was overruled on April 24, 1937. This appeal was lodged in this court on October 21, 1937.

The defendant assigns as error the action of the trial court in overruling his motion for new trial and the denial of his demand for a trial by jury. The action being one for the recovery of money where an issue was joined as to the amount due, the defendant was entitled as a matter of right to a trial by jury. Section 350, O. S. 1931, 12 Okla. St. Ann. § 556; Sutton v. Beidleman, 175 Okla. 578, 54 P. 2d 167; Thomas v. Westheimer & Daube, 87 Okla. 130, 209 P. 327; Avery v. Hays, 61 Okla. 145, 160 P. 712.

While in Sutton v. Beidleman, supra, it was said:

“Where issue is joined as to amount due, the denial of a trial by jury is not error occurring at or during the trial, therefore neither a motion for a new trial nor a bill of exceptions is necessary, and the same can be reviewed by this court on appeal by transcript”

—it is not intended to preclude a party from presenting such error in a motion for new trial. See Gant v. Crandall, 75 Okla. 173, 182 P. 680; Mires v. Hogan, 79 Okla. 233, 192 P. 811; Wells v. Shriver, 81 Okla. 108, 197 P. 460; Attaway v. Watkins, 171 Okla. 102, 41 P. 2d 914; Oklahoma City Land & Development Co. v. Patterson, 73 Okla. 234, 175 P. 934.

Under the foregoing authorities, we hold that the appeal from the order overruling the motion for new trial was proper and within time and preserved for review the error in denying the demand for jury trial. In view of the conclusion thus reached, we deem it unnecessary to discuss the matter at any great length.

The cause is reversed and remanded for a new trial in accordance with the views herein expressed.

BAYLESS, C. J., WELCH, V. C. J., and RILEY, CORN, and DAVISON, JJ., concur.  