Davidson v. Wright

i. practice: fiu-y.and 101 I. In the state of the record, we need not determine whether or not the defendant was entitled to a jury trial. At the terms of court in April and November, 1876, the defendant demanded a jury-trial and excepted to the ruling of the court refusing it to. *384him. But at these terms no trial was had, so that the ruling became immaterial, and, if erroneous, was not prejudicial. A demand for a jury must have reference to the term and time at which the demand is made. Many causes, such as the constitution of the jury, the condition of the business in court, the state of the party’s preparation and readiness for trial, etc., may render a jury desirable at one term of court. ' At the next term of the court no cause may exist rendering a jury" trial desirable, and the party may prefer submitting his cause to the court. At the January term, 1877, when the cause was tried, no demand for a jury seems to have been made. The cause was voluntarily submitted to the court for trial. We are clearly of opinion, therefore, that even if defendant was .entitled to a jury, a point which we do not determine, he waived it by failing to demand it when the cause came on for trial.

II. Some other questions are urged, as that it appears that plaintiff is not a client of defendant, and the claim is barred by the statute of limitations. It does not appear that these questions were relied upon in the court below. They are not embraced in any assignment of error. None of the evidence upon which the cause was tried is before us. The only" question which the record properly embraces is the one already considered.

Affirmed.