Bennett

The plaintiffs are attorneys at law and the action was brought to recover from defendant the value of services rendered to him by them and to recover cash advances made by them in connection with the services. The plaintiffs had judgment for nearly twenty-one thousand dollars and the defendant appeals.

The first contention of the appellant is that he was improperly denied the right of trial by jury in the action. The question presented largely concerns the provisions of subdivision 4 of section 631 of the Code of Civil Procedure. That subdivision was added to the section by the legislature through an act passed May 20th and which took effect August 8th, both in 1915. So much of the section as is material to the present controversy, including subdivision 4, is as follows: “Trial by jury may be waived by the several parties to an issue of fact ... in manner following: 4c. By failing to announce that a jury is required, at the time the cause is first set upon the trial calendar if it be set upon notice or Stipulation, or within five days after notice of setting if it be set without notice or stipulation.”

On a day between December 22d and December 27th, both in 1915, the parties…