Kruck v. Prine

*5721. Practice: jury trial: agreement. *571-The objections made to the proceedings below may be readily and briefly disposed of. The agree*572ment which toot tlie Cause from the arbitrators, and reinstated it for trial in court, and stipulating the manner of the trial, continued in force till the final disposition of the cause, except such of its provisions as were waived by the parties; the complaint, therefore, that the plaintiff was refused a jury trial after a demand, is without any foundation. It does not appear that any request of the hind was made; on the other hand, the agreement referred to expressly stipulated for a trial by the court.

2. _ finding of facts. It- is true the same agreement did provide for a -finding of the facts by the court which should be entered of record. The omission of this duty by the court is also made the ground of objection. But at the trial it was not insisted upon by the complaining party, nor was there any objection made at the time, and it is now too late to insist upon the omission as error.

A careful revision of the testimony shows that tlie motion for a new trial, because against the same, was not improperly overruled. So far from the decision being clearly unauthorized by the evidence, we are inclined to the opinion that the defense pleaded was so far supported by the weight of testimony introduced, that the probabilities are against a different result, should a new trial be ordered. The other errors assigned are based upon facts which the record shows are not true, and need not, therefore, be noticed.

Affirmed.