DEFAULT — JURY.

[Franklin Circuit Court,

January Term, 1890.]

Shauck, Shearer and Stewart, JJ.

#### LONGSTRETH & AYER MANUFG. CO. v. HALSEY & SMITH.

1. Court not Compelled to Render Judgment for Default in not Answering Interrogatories.

The enforcement of answers to interrogatories in the method prescribed by sec. 5101, Rev. Stat., rests in the sound discretion of the court; and the overruling of a motín for such enforcement is not error for which a judgment will be reversed.

3. Defendant not Bound to Offer Evidence until Jury is Waived.

Where both parties appear at the trial of a civil action for the recovery of money onlw in which issues of fact have been joined, it is error for the court to try the cause and render judgment therein without a jury having first been waived, and such waiver entered on the journal.

Error to the Court of Common Pleas of Franklin county.

James Harvey Halsey and James Smith, Jr., partners under the firm name and style of Halsey & Smith, sued The Longstreth & Ayer Manufacturing Company, a corporation, in the court of common pleas, upon three promissory notes and an account for goods sold and delivered. The corporation answered alleging that the consideration of the claims sued on was leather sold and delivered to it by the said firm, under a general agreement that the prices charged therefor should be no greater than prices by them charged competing manufacturers in Columbus, for leather of like quality; -that in violation of said agreement said company had charged the company prices in excess of those charged rival concerns ; that the aggregate of such overcharges exceeded the amount of the claims sued on; and, that by reason thereof, the consideration of said notes and account had wholly failed. And by way of cross-petition said company set up injury to its business, loss of profits, etc., and prayed for damages.

The allegations of said answer and cross-petition are denied by the reply.

Appended to said answer and cross-petition is the following interrogatory, which the company asked to have answered according to law, to-wit: “Have you at any time since January 1, 1883, sold to the Peters Dash Company, or the Columbus Buggy Company, of the city of Columbus, Ohio, vehicle dash leather manufactured by you? If yea, set forth fully and particularly the grade, kind, and quality sold, the number of bills sold of each kind or quality, the price, with words and figures of each and every bill of every kind or quality, as shown by the bills furnished with each shipment to said'Peters Dash Company or Columbus Buggy Company, and the amount of rebate or deduction made to the said Peters Dash Company, or Columbus Buggy Company, upon each and every bill sold, of each and every kind or quality, and upon all dash leather sold to the Columbus Buggy Company or the Peters Dash Company, from January 1, 1883, to May 1, 1885.”

Annexed to the reply is the following answer to said inquiry: “We have made large sales of vehicle dash leather, manufactured by us, to the Peters Dash Company or the Columbus Buggy Company, since January 1, 1883. The bills of goods made by us to the defendant for goods sold to us,, and to the Peters .‘Dash Company or the Columbus Buggy Company for goods sold to it, in most, and perhaps all instances, were apparently for the same general class of goods, although prices named were different. Wherever prices were different, however, the grade and value of the goods differed accordingly: and our bills for classes *564of. goods do not and did not undertake to discriminate among the grades and according to actual value.

“The plaintiffs here tender to defendant an inspection of their books as to the goods sold and billed to the defendant and said company or companies during tfie time in controversy, but respectfully submit that they should not be required to expend two hundred or three hundred dollars, which it would cost them for the making of copies mentioned by the defendant in its question.”

At the January term, 1889, the company moved for a non-suit against the defendant below, “as upon default, for not answering the interrogatories more fully.” The motion was overruled, and the defendant excepted.

Subsequently, at the same term, the defendant moved the court, to “require • the plaintiff to more fully answer the interrogatories attached to the answer and cross-petition of the defendant, as provided by statuté,” and “for nonsuit, judgment by default, or by attachment.” This was also overruled and an exception taken.

The further action of the court is indicated by the following entry:

“And thereupon, on motion of the plaintiff, said cause and the several issues thereof were submitted to the court on the pleadings, neither party offering any testimony. On consideration whereof, and being fully advised in the premises, tihe court finds that said plaintiffs are entitled to recover against said defendant said sum of $2,314.03, principal, together with interest, etc., * * * and that ■ said defendant is not entitled to recover anything by reason of the alleged crossdaim herein.

“It is therefore considered by the court here that the plaintiff recover, etc., * * * to which finding, ruling and judgment said defendant excepted.” It is sought by this proceeding to obtain a reversal of said judgment, upon áre grounds that the court below erred in overruling said motions respectively, and in rendering judgment upon the pleadings without a jury having first been waived.

Shearer, J.

I. In respect to the ruling of the court on the first motion, there was no ^ror. There is no authority for entering a nonsuit for the failure of a party to. answer interrogatories as fully as his adversary may think he ought to do. If the interrogatories are not “plainly and fully answered,” it would be good practice to move the court to require it to be done; and if the order be not complied ffith, it may be enforced, in the discretion of the court, by nonsuit or otherwise, a$ provided by sec. 5101, Rev. Stat.

Nor do we think there is ground for complaint as to the overruling of the second motion. The first branch of this motion is to require the plaintiff to answer more fully; the second for “nonsuit, judgment by default or by attachment,” which we suppose was intended as an application to -enforce answers by the means named.

Section 5101, Rev. Stat., provides that “answers may be enforced by nonsuit, judgment by default, or by attachment, as the justice of the case may require.” Se do not think this provision entitles a party, as of right, to such a remedy. .e power to enforce compliance with the requirements of sec. 5099, Rev. Stat., is discretionary, and a judgment will not be reversed for the refusal of the court to exercise that power.

II. The principal reliance of the plaintiff in error for a reversal is upon the action of the court below in rendering judgment without the intervention of a jury, that mode of trial not having been waived.

The pleadings present issues of fact. Such issues arising in actions for the recovery of money only, must be tried by a jury, unless a jury trial be waived or a reference be ordered, sec. 5130, Rev. Stat.

In actions arising upon contract. 4c trial by jury may be waived, (l'), bv the *565consent of the party appearing, when the other party fails to appear at the trial himself or attorney; (2), by written consent, in person or by attorney, filed witB the clerk; (3), by oral consent, in open court, entered on the journal, sec. 5204, Rev. Stat. In no other way can trial by jury in an action like this be waived, unless it be by estoppel, as, for example, where a party suffers his case to be tried without objection until after the issues are found against him.

Artz & Mooney, for plaintiff in error.

J. T. Holmes, for defendant in error.

The case under consideration was for the recovery of money only, and therefore was triable by jury, sec. 5130, Rev. Stat. Trial by such tribunal, as we have seen, can only be waived in the manner prescribed by sec. 52(54, Rev. Stat., or by conduct of the party amounting to a waiver by estoppel. The record show? that both parties appeared. No written consent, waiving a jury, was filed witB the clerk; nor was there oral consent, in open court, to dispense with a jury, eatered on the journal. Nor does the record show conduct on the part of the defendant which would estop him to object to trial by the court without a statutory waiver of a jury. Under these circumstances the court had no jurisdiction to try the cause. The fact that no testimony was offered by either party does not alter the case. The defendant was not bound to offer evidence to the court until a jury had been waived.

In Slocum v. Swan’s Lessee, 4 O. S., 162, which was an action of ejectment in which issues of fact had been joined, the record showed that “neither part* requiring a jury and the court being fully advised in the premises,” found ana adjudged in favor of the plaintiff. Held, the issue could not be tried by the court without a waiver by the parties of a jury trial, and that there was no such waiver; and the judgment was reversed.

If the language of the decree in the case just cited was insufficient to show a ■ waiver, we may infer that express and affirmative language is essential to sucB waiver: In the case under review the record is silent in this regard.

In view of the provisions of the statute and the ruling in Slocum v. Swan’s Lessee, supra, we must hold' that the court below, erred in trying the case and) rendering judgment without a trial by jury having been waived.

Judgment reversed.