Nevin v. Mallon

MARKS, J.

Appellant has moved for a diminution of the record on appeal, whereby he seeks to have incorporated in it a duly certified copy of his notice of appeal, and certified copies of various documents and account books by which he maintains it is shown that a jury trial was waived by the parties.

The notice of appeal is a necessary part of the record in order that this court may be enabled to assume jurisdiction of the appeal. As it is a document which may be certified by the clerk alone, the motion to make it a part of the record is granted and the certified copy presented with the motion for diminution of the record is ordered filed.

(Lapique

v.

Kelly,

67 Cal. App. 531 [228 Pac. 355].)

As will appear in our consideration of the appeal from the judgment, the other documents which appellant desires incorporated in the record could have no bearing on the final determination of this appeal. The motion for diminution of the record as affecting all copies other than the notice of appeal is denied'.

Appellant objected to a trial by jury at the time the case was called in the department of the presiding judge for assignment to a trial court. He renewed his objection in the trial department. Both judges overruled his objections and the case was tried before a jury which returned a verdict against him. His counsel now states that the case was first set down for trial on December 7, 1931; that the trial was continued from time to time until July 25, 1932, when it was had; that one day’s jury fee was deposited May 6, 1932. Assuming these facts to be true, the trial of the case

[573]

before a jury does not constitute reversible error. In

Dickey

v.

Kuhn,

125 Cal. App. 68 [13 Pac. (2d) 834],'it was said: “It is the rule that notwithstanding a jury has been waived in the statutory manner, it is within the discretion of the trial court to disregard the waiver and try the case by a jury (2 Bancroft’s Code Practice and Remedies, sec. 1120, p. 1580, and cases there cited; 35 Cor. Jur., Juries, sec. 139, p. 222;