Graver Corp. v. Hercules Gasoline Co.

A petition is filed for a rehearing, on the .ground that this court was without jurisdiction to review any questions except those arising on the process, pleadings, or judgment, since there was not filed with the District Court a written stipulation, signed by the parties, providing for the trial of the cause by the court without the intervention of a jury. The plaintiff in error has failed to answer the petition under the rule issued. The record in this court recites that the trial without a jury was duly waived, and, no question being raised as to the sufficiency of the waiver, the court erroneously assumed, without further concern, a legal waiver.

The Seventh Amendment to the Constitution of the United States guarantees a jury trial “in suits at common law where the value in controversy shall exceed twenty dollars. * *» Act March 3, 1865, § 4 ( 13 Stat. 501 ; section 649, R. S.; section 1587, C. S.), provides that the right of trial by jury preserved by the Seventh Amendment may be waived “ * * * whenever the parties or their attorneys of record file a, stipulation in writing with the clerk of the court, waiving a jury. * * * ”

Section 700, R. S. (section 1668, C. S.),…