pert examination, to which she offers to submit, should not be decided against her, unless such decision is supported by the evidence of a physician who has made such examination; since the best evidence obtainable should as in other cases be required.32 § 1141. Bastardy A bastardy proceeding under the provisions of the statute is in the nature of a civil action, and the issues need be supported by a preponderance of the evidence.3 32 Bunger v. Bunger, 117 P. 1017, 85 Kan. 564, Ann. Cas. 1913A, 126. A decree denying a divorce for impotency of the wife will not be disturbed, where there was testimony of seven physicians who had examined her that she was physically normal. Bunger v. Bunger, 132 P. 1004, 90 Kan. 39. 33 Powelson v. State (Okl.) 169 P. 1093. Since an action brought under Rev. Laws 1910, § 4401, for the support of a bastard child is in the nature of a civil action, plaintiff is required to prove her case only by a fair preponderance of the evidence. Libby v. State, 142 P. 406, 42 Okl. 603. (1072) 1142-1150. Article I.-Right to jury trial. 1151-1162. Article II.-Jury panel. 1163-1171. Article III-Qualifications, challenges, and exemptions. 1172-1175. Article IV.-Oath, number, term, and summoning. 1176-1189. Article V.—Custody, conduct, and deliberations. 1190-1203. Article VI.-Verdict. 1204-1216. Article VII.-Special interrogatories and findings. § 1142. 1146. In actions at law or in equity or mixed actions. 1148. In special proceedings. 1149. On intermediate appeal. Right to jury trial-Verdict "The right of trial by jury shall be and remain inviolate, and a jury for the trial of civil and criminal cases in courts of record, other than county courts, shall consist of twelve men; but, in county courts, and courts not of record, a jury shall consist of six men. This section shall not be so construed as to prevent limitations being fixed by law upon the right of appeal from judgments of courts not of record in civil cases concerning causes of action involving less than twenty dollars. In civil cases, and in criminal cases less than felonies, three-fourths of the whole number of jurors concurring shall have power to render a verdict. In all other cases the entire number of jurors must concur to render a verdict. In case a verdict is rendered by less than the whole number of jurors, the verdict shall be in writing and signed by each juror concurring therein." 1 1 Const. Okl. art. 2, § 19. HON.PL.& PRAC.-68 (1073) The right to a trial by jury secured by the Constitution is a trial according to the course of the common law as it existed and substantially as that in use when Constitution was adopted, except as specifically modified by other provisions of Constitution.2 The provision contained in the Constitution of the United States does not guarantee a trial by jury to litigants in civil actions in the courts of the several states.3 The courts will enforce a rigid observance of the statutes designed to preserve inviolate the right of trial by jury, and the purity of jury trials. § 1143. Waiver "The trial by jury may be waived by the parties, in actions arising on contract, and with the assent of the court, in other actions, in the following manner: By the consent of the party appearing, when the other party fails to appear at the trial by himself or attorney. By written consent, in person or by attorney, filed with the clerk. By oral consent, in open court, entered on the journal." 5 "In all issues of fact joined in any court, all parties may waive the right to have the same determined by jury; in which case the 2 One Cadillac Automobile, 1918 Model, v. State, 75 Okl. 134, 182 P. 227. The right of trial by jury, declared inviolate by Const. art. 2, § 19, except as modified in the Constitution itself, means the right as it existed in the territory at the time of the adoption of the Constitution. Mathews v. Sniggs, 75 Okl. 108, 182 P. 703; State v. Cobb, 104 P. 361, 24 Okl. 662, 24 L. R. A. (N. S.) 639; Hale v. Marshall, 52 Okl. 688, 153 P. 167; Parker v. Hamilton, 49 Okl. 693, 154 P. 65; In re Byrd, 122 P. 516, 31 Okl. 549; Ex parte Dagley, 128 P. 699, 35 Okl. 180, 44 L. R. A. (N. S.) 389; Ex parte Linke, 128 P. 702, 35 Okl. 192. Const. art. 2, § 19, does not prevent Legislature from abrogating commonlaw right of action for injury to employé and substituting Sess. Laws 1915, c. 246, the Workmen's Compensation Law, providing award of compensation without jury trial. Adams v. Iten Biscuit Co., 63 Okl. 52, 162 P. 938. One of the elements of a jury trial as it existed before admission of the state was power of the trial judge to instruct the jury upon the law. Baker v. Newton, 112 P. 1034, 27 Okl. 436. 3 One Cadillac Automobile, 1918 Model, v. State, 75 Okl. 134, 182 P. 227; Adams v. Iten Biscuit Co., 63 Okl. 52, 162 P. 938; St. Louis & S. F. R. Co. v. Brown, 45 Okl. 143, 144 P. 1075. Const. U. S. Amend. 6, guaranteeing a trial by jury of 12, does not apply to the state courts of Oklahoma. Brown v. State, 106 P. 975, 3 Okl. Cr. 475. 4 Ridley v. State, 115 P. 628, 5 Okl. Cr. 522; Henderson v. State (Okl. Cr. App.) 197 P. 720; Watson v. State, 124 P. 329, 7 Okl. Cr. 508. 5 Rev. Laws 1910, § 5016. finding of the judge, upon the facts, shall have the force and effect of a verdict by jury.' In all cases where a trial by jury does not constitute an essential part of due process of law, it may be waived by the party." A jury is waived by failure to make demand therefor, by voluntary absence from the trial, though the case is set at a nonjury term,10 by going to trial before the court without objection,11 by 6 Const. Okl. art. 7, § 20. 7 Ex parte Plaistridge (Okl.) 173 P. 646. 8 By proceeding with the hearing without demanding a jury, the parties are deemed to have waived a jury trial of the question of fact involved. Feight v. Thisler, 114 P. 249, 84 Kan. 185; Ruth v. Witherspoon-Engler Co., 164 P. 1064, 100 Kan. 609, rehearing denied Ruth v. Witherspoon-Englar Co., 166 P. 481, 101 Kan. 406. In a suit to enjoin a city from shutting off gas from plaintiffs' office building, the answer set up a counterclaim for installing meters, rent thereof, and for gas used. No demand was made for a jury, but after a full trial an exception was taken to the judgment. Held, that plaintiffs waived the right to jury trial. Cunningham v. City of Iola, 119 P. 317, 86 Kan. 86, rehearing denied 119 P. 1135, 86 Kan. 402. 9 Where an appeal is taken, without supersedeas, from a judgment awarding alimony and maintenance, and plaintiff in error refuses to comply with Supreme Court's order to pay clerk counsel fees, etc., and disposes of his property and remains outside of state beyond court's process, the dismissal of his appeal is not a conviction of, or imposition of penalty for, contempt without a jury hearing, in violation of the Constitution his right to a hearing under such constitutional provision being waived by his voluntarily absenting himself. Spradling v. Spradling (Okl.) 181 P. 148; Const. Okl. art. 2, § 25. A defendant by not appearing at the time a case is assigned for trial waives his right to a trial by jury. Weems v. McDavitt, 30 P. 481, 49 Kan. 260. Under Comp. Laws 1909, § 5808, a jury may be waived by consent of the party appearing, when the other party fails to appear at the trial. Farmers' & Merchants' Ins. Co. v. Cuff, 116 P. 435, 29 Okl. 106, 35 L. R. A. (N. S.) 892; National Life Ins. Co. v. Same, 116 P. 437, 29 Okl. 113; German-American Ins. Co. v. Same, 116 P. 438, 29 Okl. 114. 10 Where defendant is in default, and the case is set at a nonjury term, defendant not being present, and plaintiff not demanding a jury, the case being properly triable to the court, setting of case at a nonjury term is not ground for vacation of default. Pulaski Oil Co. v. Conner, 62 Okl. 211, 162 P. 464, L. R. A. 1917C, 1190. 11 A jury may be waived without a written stipulation, both parties going to trial before the court without objection, and their counsel consenting to the court's statement that he would render judgment on the merits. Landrum v. Landrum, 50 Okl. 746, 151 P. 479. Where, in a suit to quiet title, plaintiff made no objection to a trial of the case to the court as a suit in equity, any right he might have had to a jury trial was waived. Butts v. Butts, 114 P. 1048, 84 Kan. 475. (1075) an erroneous statement of the party demanding a jury that only equitable issues are involved,12 or by an agreement to refer the case.13 That each party separately moves for peremptory instructions, does not constitute a waiver of the right to have a verdict returned by the jury.14 After the decision of the court, granting a motion to refer a cause an agreement by the parties to try the case to the court does not revive the right of the party opposing the reference to demand a jury trial.15 Where plaintiff's attorney answered, in response to the judge's question as to what there was in the case for a jury, that there was a question of damages, and no objection was made to the judge's proposal to submit such question, and decide the other questions himself, plaintiff waived his right to have any other issues submitted to the jury.10 12 Where the issues joined by the pleadings would require the granting of a jury trial on demand, but the parties state to the court, at the time of demand, that the only matters in issue are the priorities of certain alleged liens. the refusal of a jury trial is not error. Wiscomb v. Cubberly, 33 P. 320, 51 Kan. 580. 13 Where proceeding to foreclose a mechanic's lien was brought in a United States court of Indian Territory, before the admission of the state, on the law docket, and upon defendant's motion, over plaintiff's objection, was transferred to the equity docket, plaintiff, by agreeing with defendant in open court to refer the case to a master to make findings and report upon all questions of law and fact, waived any right he may have had to a jury trial. Jones v. Balsley & Rogers, 27 Okl. 220, 111 P. 942. 14 Const. art. 7, § 20, provides that in all issues of fact joined in any court all parties may waive the right to a jury trial. Comp. Laws 1909, § 5808, provides that the trial by jury may be waived by the parties in actions arising on contract, and with the assent of the court in other actions, either by the consent of the party appearing when the other party fails to appear at the trial, by written consent filed with the clerk, or by oral consent in open court entered on the journal. Held, that the fact that both plaintiff and defendant each verbally moved for peremptory instructions did not constitute a waiver of the right to have a verdict returned by the jury. Farmers' Nat. Bank of Tecumseh v. McCall, 106 P. 866, 25 Okl. 600, 26 L. R. A. (N. S.) 217. 15 Lapham v. Kansas & Texas Oil, Gas & Pipe Line Co., 123 P. 863, 87 Kan. 65, Ann. Cas. 1913D, 813. Where a party objects to the reference of a cause, and demands a jury trial, which objection and demand are overruled, but subsequently consents to the appointment of a referee, he abandons the objection and demand, and waives the jury trial, and the right to insist on the error in denying such trial. Smith v. Burlingham, 24 P. 947, 44 Kan. 487. 16 Carlson v. Allen, 135 P. 669, 90 Kan. 457. |