Summary
In Trainor v. Heath, 67 N.H. 384, 29 A. 846, the case was taken out of the jury assignment and the record marked "issues to the court".
Summary of this case from Shores Co. v. Iowa Chemical Co.Opinion
Decided December, 1892.
If an action in which the parties had a constitutional right to trial by jury was by their agreement marked for trial by the court, the agreement and marking remain in force after a trial by the court which does not result in a decision, and will not be vacated except for cause shown[.]
CASE, for personal injuries caused by the defendants' negligence. The damages demanded exceed one hundred dollars. At the March term, 1891, the case, after having been put upon the jury list, was taken from it by agreement, marked "issues to the court," and continued. At the next term it was tried under the agreement, but was not decided. The question was reserved whether the plaintiff is now entitled to a jury trial.
Denis F. O'Connor and David Cross, for the plaintiff.
Alpheus C. Osgood and Burnham, Brown Warren, for the defendants.
The agreement binds the parties, and, like other agreements made matter of record, should be specifically enforced, unless it appears that it ought to be vacated for good cause. Alton v. Gilmanton, 2 N.H. 520; Fernald v. Ladd, 4 N.H. 370; Dexter v. Young, 40 N.H. 130; Blain v. Patterson, 47 N.H. 523, 526; Wells v. Jackson Iron Company, 48 N.H. 491, 526; Page v. Brewsters, 54 N.H. 184; Brooks v. New Durham, 55 N.H. 559, 561; Vaughan v. Morrison, 55 N.H. 580, 592; Weare v. Putnam, 56 N.H. 49; Woodbury v. Swan, 59 N.H. 515; Russell v. Babbitt, 60 N.H. 373. Whether it should be vacated is a question of fact to be determined at the trial term. By the agreement, the plaintiff waived her right of trial by jury. The waiver continues while the agreement is in force. There is no provision in the agreement by which the case is to be tried by a particular member of the court, or at a particular term, or by a jury at subsequent trials if the first does not result in a verdict. Its terms are general, and include all trials that are necessary to reach a decision of the issues.
Case discharged.
CLARK, J., did not sit: the others concurred.