#### Albien v. Smith.

Under the provision of the Constitution that the right of trial by jury shall remain inviolate, and shall extend to all cases at law, and Rev. Code Civ. Proc. § 275, providing that in an action for the recovery of specific real or personal property trial by jury may he waived only with the assent of the court to the written consent of the parties filed with the clerk, or an oral stipulation made in open court and recorded in the minutes of the trial, the right to a trial by jury is not waived by'de- . fendant in an action at law for the recovery of personal property by moving for a directed verdict at the conclusion of plaintiff's evidence, where, after the denial of the motion, he. introduces evidence sufficient to carry his case to the jury.

(Opinion filed May 31, 1905.)

Appeal from circuit court, Custer county; Hon. Levi McGee, Judge.

Action by Anna A. Albien against J. R. Smith, receiver of the W. H. Walling Mercantile Company. From a judgment for plaintiff, defendant appeals.

Reversed.

*E. L. Grantham*and *W E.*Benedict, for appellant.

*B. JR. Wood, A. T. Feay,*and *Ghauncey L, Wood,*for respondent.

Fuller, J.

Plaintiff obtained judgment in this action at law for the possession of a stock of merchandise for the purpose of foreclosing by advertisement a mortgage thereon, and the defendant appealed from such judgment and an order overruling a motion for a new trial.

After a default existed in the terms of this mortgage, and the mortgagor had become heavily indebted to numerous creditors, he transferred everything to the W. H. Walling Mercantile Company, of which he was practically the only stockholder, and prior to the commencement of this action the assets of *422such corporation were in the hands of the receiver, who prosecutes this appeal. The issues joined by a denial of all the material allegations of the complaint were tried to a jury, which, over the objection of appellant, were discharged after both litigants had rested, and upon conflicting evidence the court made its findings of fact and conclusions of law in favor of respondent, and the judgment complained of was accordingly entered.

While the sufficiency of appellant’s evidence to go to the jury is apparently unchallenged, counsel for respondent contend that the refusal to so submit the case for a determination of the controverted facts furnishes no ground for a reversal, because that right was lost when, at- the conclusion of the testimony offered in support of the complaint, appellant treated the case as presenting merely a question of law by moving for the direction of a verdict, which was denied, and not thereafter renewed. The constitutional guaranty of the right of trial by jury cannot be dispensed with except by the consent of the parties entitled to it, and cases where both sides move for the direction of a verdict at the conclusion of all the evidence have no application to an action at law involving the right to the possession of specific personal property, where the jury has been, arbitrarily discharged, and conflicting facts determined by the court upon a record containing material evidence introduced subsequently to the denial of the defeated parties’ motion for a directed verdict. The constitutional injunction is that “the right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy” (Const, art. 6, § 6), and section 275 of the Revised Code of Civil Procedure provides, in substance, that in an *423action for the recovery of specific real or personal properly trial by jury may.be waived only with the assent of the court to the written consent of the parties filed with the clerk, or an oral stipulation made in open court and recordedm the minutes of the trial. Belatti v. Pierce, 8 S. D. 456, 66 N. W. 1088.

This view, being decisive of the case, renders further discussion of appellant’s assignments of error unnecessary, and the judgment appealed from is reversed, and a new trial ordered.