Farwell v. Murray

Belcher, C.

The plaintiffs. brought this action to recover the sum of five hundred and fifty-six dollars .and forty-two cents for and on account of work done and labor performed by plaintiffs for defendant, and if or and on account of goods, wares, and merchandise sold and delivered by plaintiffs to defendant.

The defendant demurred to the complaint upon the grounds that it did not state facts sufficient to constitute a cause of action, and that it was uncertain and unintelligible, for the reason that it could not be determined therefrom how much of the sum alleged to be due was for work and labor, and how much for goods, wares, and merchandise.

The demurrer was overruled, and the defendant then answered denying the allegations of the complaint.

The case was tried by the court without a jury, and the judgment entered was in favor of the plaintiffs for the sum ©f four hundred and ninety dollars and fifty-seven cents, from which and from an order denying his motion for a new trial the defendant appeals.

There was no prejudicial error in the order overruling the demurrer. The complaint stated a cause of action, and it was not necessary to set forth the items of the account. If the defendant desired more particular information as to the items, he might have demanded a bill of particulars. (Code Civ. Proc., sec. 454.)

It appears from the bill of exceptions that the case came on regularly to be heard at 10 o’clock a. m., on August 22, 1893, at which time the attorneys for plaintiffs and the defendant appeared, but the attorney for defendant was not present. It was stated to the court that defendant’s attorney was engaged in the trial of another case in the superior court of the city and county of San Francisco, and for that reason could not then be present to try this case. At the request of the defendant the trial of the case was thereupon continued until 2 o’clock p. M., of the same day, at which time the plaintiffs and their attorneys appeared and announced *467 that they were ready to proceed with the trial; and the defendant appeared with a new attorney, who was by an order of the court authorized to be and appear as the attorney for the defendant in said action. “Thereupon the defendant demanded a trial by jury, which demand the court refused, and denied the right of the defendant to a jury trial.”

The defendant duly excepted to this ruling of the court, and now assigns it as error. The constitution, in article I, section 7, provides: “The right of trial by jury shall be secured to all, and remain inviolate. . . * . A trial by jury may be waived .... in civil actions by the consent of the parties, signified in such manner as may be prescribed by law.”

And section 681 of the Code of Civil Procedure provides that a trial by jury may be waived in manner following: “1. By failing to appear at the trial, 2. By written consent, in person or by attorney, filed with the clerk; 3. By oral consent in open court, entered in the minutes.”

It is claimed for respondent that the trial of the case was actually commenced in the morning, when it “ came on regularly to be heard,” and that appellant waived his right to a trial by jury by not demanding it at that time. We fail to see any valid ground on which this claim can be sustained. The trial of the case was not commenced in the morning, but was continued until. the afternoon, when appellant promptly demanded a trial by jury. He was certainly entitled to such a trial, unless he had waived his right in one of the ways prescribed by the law.

We see nothing in the record showing such waiver, and therefore conclude that the court erred in its ruling. (See Biggs v. Lloyd, 70 Cal. 447 .)

The other matters discussed by counsel need not be considered. The judgment and order appealed from should be reversed, and the cause remanded for a new trial.

*468 Searls, O., and Temple C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are reversed and the cause remanded for a new trial.

Harrison, J., Van Fleet, J., Garoutte, J.