Warner v. Wigers

after advisement with his associates, held that both parties having concurred in bringing on the trial of the issue of fact, thus consenting to that course; it must be deemed to have been tried first by the order of the court, within the meaning of the code.

He said that it was the opinion of all the justices of the court, and such will be the practice in future, that whenever a cause was moved on the trial calendar, in which there was an issue of law pending, the court will then determine whether the issue of fact shall be first tried or not. And it is not necessary to obtain a previous order on the subject.