Doll v. Anderson
Before: Rhodes
Synopsis
Waiter of Jury.—A jury may be waived by the parties by a failure to file with the clerk, at least six days before the commencement of the term at which the action may be tried, a notice that a jury will be required.
Bight of Court to submit Issue of Fact to a Jury.—The Court has a right to direct an issue of fact to bo tried by a jury, notwithstanding the parties have waived the same by a failure to give notice at least six days before the commencement of the term that one will be required.
A Contract Assignable.—A contract where the owner of a stallion leases him for a season for a sum of money agreed on, and reserves the right to have the horse cover nine mares during the season, is assignable, and the assignee,, who is also the purchaser of the horse from the owner is entitled, to all the benefits arising out of the contract.
Same.—Before the assignee of such contract is entitled to the benefit of the same he must give notice to the lessee that he has purchased the same.
The Presumption of Law is that the Evidence warranted the Verdict.— If the jury in their verdict necessarily pass on a material question of fact, the appellate Court will not reverse the judgment on the ground that there was no evidence to warrant the verdict, unless a motion is made for a new trial, and a statement made which shows that no evidence was introduced to prove the fact. The presumption of the law is that there was evidence to sustain every material fact found by the jury.
Order op producing Testimony on Trial.—The assignee of a contract who claims under it may introduce it in evidence before giving proof that the opposite party had notice of its assignment.
By the Court, Rhodes, J. Upon the calling of this cause for trial the defendant demanded a jury, and the plaintiff objected to a trial by a jury on the ground that the defendant had waived a jury by failing to file a notice that a jury would be required six days before the commencement of the term. The Court overruled the objection and the plaintiff excepted. That decision is now assigned .as error.
It is provided by section twenty-three of the Act of 1863, concerning grand and trial jurors, that “ a jury shall be deemed waived unless the parties, or one of them, to the action or proceeding, shall, at least six days before the commencement [251]of the term at which the same may be tried, file with the Clerk a notice that a jury will be required,” and there can be no doubt that a jury may in that manner be waived by the parties. The Court, however, has the right, notwithstanding such waiver, to direct an issue of fact to be tried by. a jury. Besides this, it would not be presumed that any injury had accrued to the plaintiff in consequence of the issues of fact being tried by a jury instead of the Court.
The contract made by the plaintiff and Welsh was assignable, and the defendant, as the assignee of the contract and the purchaser of the horse from Welsh, was entitled to all the benefits arising out of the contract and the ownership of the horse that Welsh would have been entitled to, had he continued to be the owner of the horse and the contract.
The remaining error assigned by the plaintiff is, “ That the Court as a matter of law erred in admitting the contract and assignment in evidence without proof that plaintiff had had notice thereof.” The appeal is taken from the judgment, and the record contains, besides the judgment roll, a statement on appeal, which appears to have been settled and certified as a bill of exceptions and as a statement on appeal, by the Judge of the District Court. The statement sets out the contract and its assignment, the fact that they were offered in evidence, that the plaintiff objected to their admission on the ground that the defendant had not proved notice to the plaintiff of the assignment, that the objection was overruled and the evidence admitted; and that the defendant duly excepted to the decision. The statement contains none of the evidence in the case except the contract and its assignment to the defendant and the bill of sale of the horse, by Welsh to the defendant, and it does not affirmatively appear that all the evidence in the case, or all that relates to the question of notice of the assignment is set out in the statement, but on the contrary it appears from the certificate to the statement that evidence was given upon that point, for it is stated in the certificate that “ The plaintiff and defendant both having been sworn and having testified before the jury upon the trial of the cause
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