"Second. For that this court charged said jury, in substance and effect, that the said plaintiff, by and through the persons with whom he was riding, was guilty of contributory negligence."

This motion was granted, and judgment non obstante veredicto was entered for defendant. Plaintiff brings error.

The defendant and the court below mistook the practice. At the common law, judgment non obstante veredicto could be entered only when the plea confessed the cause of action and set up matters in avoidance which were insufficient, although found true, to constitute a defense or bar to the action. The rule was later relaxed, and made to apply in favor of the defendant, so that it is now generally held that the defendant is entitled to a judgment non obstante veredicto when the plaintiff's pleadings are not sufficient to support a judgment in his favor. 11 Enc. Pl. & Prac. 912 et seq. So, too, if there be both a general and special verdict, and the latter be inconsistent with the former, judgment may, in some cases, be based upon the special verdict, disregarding the general verdict. But we know of no case in which it is proper practice to enter a judgment non obstante veredicto, unless it appears on the record that the verdict of the jury cannot be supported as matter of law. In all other cases the proper practice is to move for a new trial, or review the case on writ of error and exceptions. There must be either a general or special verdict to support a judgment, or the pleadings must authorize its entry. This question is ruled by Central Sav. Bank v. O'Connor, 132 Mich. 578. See, also, Schmid v. Village of Frankfort, 134 Mich. 619, and County of Montmorency v. Putnam, 135 Mich. 111. Counsel for appellant has presented the case upon the assumption that the circuit court had power to consider the question which he assumed to pass upon, and has pointed out that the court mistook the rule as to imputed negligence, and that his holding is at variance with the ruling of this court in McKernan v. Railway Co., 138 Mich. 519.

Defendant's counsel contend that there are other reasons why the verdict should have been for the defendant. We must decline to enter upon a consideration of these questions.

The judgment is reversed, and the case will be remanded, that the plaintiff may move for judgment on the verdict. Plaintiff will re

cover costs.

MOORE, C. J., and GRANT, BLAIR, and OSTRANDER, JJ., concurred.1

1 See Streitweiser v. Lightbourn, 87 Conn. 527 (1913). Compare Cruikshank v. St. Paul Fire & Marine Ins. Co., 75 Minn. 266 (1899) (statutory provision for judgment on the evidence notwithstanding the verdict). Cf. pp. 361-364, supra.

MOTION FOR JUDGMENT ON THE Pleadings.

Ar common law one party could take advantage of defects in a pleading of the opposite party by a demurrer. After a verdict was rendered against him, he could take advantage of such a defect by a motion in arrest of judgment or in some cases by a motion for judgment notwithstanding the verdict. He could not, however, attack the pleadings of the opposite party at the trial. The trial judge had no authority to rule upon the sufficiency of the pleadings, since that was a matter for the full bench of the court.

In many states it is now provided that either party may make a motion for judgment on the pleadings, either before the trial or at the trial or after the trial. Thus, Section 476 of the New York Civil Practice Act provides:

"Judgment may be rendered by the court in favor of any party or parties, and against any party or parties, at any stage of an action or appeal, if warranted by the pleadings or the admissions of a party or parties; and a judgment may be rendered by the court as to a part of a cause of action and the action proceed as to the remaining issues, as justice may require."

It is further provided in the New York Rules of Civil Practice, Rule 112:

"If either party be entitled to judgment on the pleadings, the court may, on motion, give judgment accordingly, and without regard to which party makes the motion." 1

In some states an objection to the sufficiency of a pleading may be taken at the trial by a motion to exclude all evidence.2 In Massachusetts a party may move for a directed verdict on the pleadings and evidence without making a motion to exclude evidence.3

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 12(c). Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.*

1 See Y. B. Smith, "Some Problems in Connection with Motions during the Trial of a Civil Action before a Jury," 25 Col. L. Rev. 752 (1925).

2 See Goodrich v. Board of Commissioners, 47 Kan. 355, 357-359 (1891); O'Day v. Ambaum, 47 Wash. 684, 687 (1907).

3 See Murphy 7. Russell, 202 Mass. 480 (1909).

4 Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States (1945) 9, proposed to add the following to Rule 12(c): "If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and received by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 [pp. 224-225, supra], and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Cf. Rule 50(b), p. 363, supra.

SECTION 6

TRIAL WITHOUT A JURY

OKMULGEE PRODUCING & REFINING CO. v. WOLF.

COCHRAN, J. This action was commenced by defendant in error against plaintiff in error to recover the sum of $2,000 for services alleged to have been rendered in auditing certain books. The case was tried to the court without a jury, and judgment rendered for the plaintiff. The parties will be referred to as plaintiff and defendant, as they appeared in the lower court.

The defendant complains of the action of the trial court in denying to it a trial by a jury. The answer of the defendant was filed on March 13th. On March 27th, the defendant filed a verified motion to strike the case from the trial assignment [which was denied}'

On April 5th, the case was called for trial and the defendant again demanded a jury. This motion was by the court overruled.

Section 532, Okla. Comp. Stat. 1921, provides:

"Issues of fact arising in actions for the recovery of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered, as hereinafter provided."

Section 555, Okla. Comp. Stat. 1921, provides three methods by which a jury may be waived, as follows:

"By 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.".

It is not contended that there was a waiver by either the first or second methods; but it is earnestly insisted by the plaintiff that the record shows a waiver by oral consent in open court entered on the journal, and he relies upon journal entry made by the court on the 27th day of March, in which the court states:

"Upon examining said application and hearing the argument of counsel and upon its recollection of the statement made in open court by Mr. McClarin, the counsel for the defendant, and having examined a telegram presented by counsel and signed by said counsel for the defendant, finds that the defendant has heretofore waived the right to a trial by jury and consented that the cause might be tried by the court without a jury."

1 The text of this motion and of the court's order denying it is omitted.

We are not advised as to the contents of the telegram, or the statement made by the counsel for the defendant; but, conceding that counsel for defendant had theretofore in open court stated that the cause might be tried without a jury and that he had also signified such consent by a telegram, we are of the opinion that such actions do not bring this case within the meaning of the provision of the statute providing for waiver by oral consent in open court entered on the journal. The only journal entries made in connection with this matter were that made on the 27th day of March, at which time defendant was demanding a trial by jury, and that made on the date of the trial, which shows that the defendant was still demanding a trial by jury. Had counsel for the defendant in open court by oral consent waived a jury prior to such date, a journal entry thereof should have been entered, and, no such journal entry having been made, a journal entry made at the time the jury was demanded, in which the trial court recites that theretofore a jury had been waived by statement made in open court, is not sufficient to constitute a waiver.

In Campbell, Adm'r, v. Powell, 76 Okla. 286, the court said:

"The Legislature, in preserving the rights of jury trial, provides what must be done, and this is in clear and unambiguous language and there is no time fixed for this demand to be made. The statute indicates that the waiver of a jury must be affirmatively shown. If the parties desire to waive a jury and submit their cause to the court, the statute gives them a clear right so to do. In this case there was no written consent to such waiver filed with the clerk nor oral consent in open court entered on the journal. The plaintiffs in error did not go to trial without demanding, but demanded one.'

For the error in refusing to grant to the defendant a trial by jury, the cause should be reversed and remanded, with direction to grant a new trial, and it is so ordered.

JOHNSON, V. C. J., and MCNEILL, KENNAMER, and HARRISON, JJ., concur.1

1 Suppose that a party goes to trial before the judge without a jury, without objection, but the judgment is vacated and a new trial ordered. May that party demand a jury on the new trial? See Schumaker v. Crane-Churchill Co., 66 Neb. 440 (1902) (opinion by Roscoe Pound, C.).

May the defendant in a criminal case involving felony waive trial by jury with the consent of the prosecution? See Patton v. United States, 281 U. S. 276 (1930), noted in 44 Harv. L. Rev. 124 (1930). Cf. Oppenheim, “Waiver of Trial by Jury in Criminal Cases,” 25 Mich. L. Rev. 695 (1927). May he do so over the objection of the prosecution? See 45 Harv. L. Rev. 932 (1932). As to jury trial for minor criminal offenses, see Frankfurter and Corcoran, “Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury," 39 Harv. L. Rev. 917 (1926). As to what are minor offenses, see District of Columbia v. Colts, 282 U. S. 63 (1930). Compare Schick v. United States, 195 U. S. 65 (1904). Cf. 44 Harv. L. Rev. 465 (1931).

NEW YORK CIVIL PRACTICE ACT (1921).

§ 425. Issues of fact triable by a jury.

In each of the following actions an issue of fact must be tried by a jury unless a jury trial is waived or a reference is directed:

1. An action in which the complaint demands judgment for a sum of money only.

2. An action of ejectment; for dower; for waste; for a nuisance; to recover a chattel; or for determination of a claim to real property under article fifteen of the real property law.1

§ 426. Trial by jury; how waived.

A party may waive his right to the trial of the issue of fact by at jury, in any of the following modes:

1. By failing to appear at the trial.

2. By filing with the clerk a written waiver signed by the attorney for the party.

3. By an oral consent in open court entered in the minutes.

4. By moving the trial of the action, without a jury, or, if the adverse party so moves it, by failing to claim a trial by a jury, before the production of any evidence upon the trial.

5. In the actions specified in the preceding section pending in the supreme court in the counties of New York, Bronx, Richmond, Kings and Queens, by a party serving a copy of a note of issue failing to demand therein trial by jury. Any other party to the action who has been served with a copy of a note of issue not containing a demand for trial by jury, may serve upon the attorneys for all the other parties to the action a copy of a written notice demanding a jury trial and file such notice together with proof of due service with the county clerk within six days after the last day on which the note of issue may be filed, whereupon the action shall be placed upon the calendar for trials by jury. The county clerk shall not accept such notice for filing unless a note of issue has been filed in the action. If no filed note of issue contains a demand for trial by jury and no notice demanding a jury trial is filed as herein provided, the action shall be placed upon the calendar for trial of actions at law without a jury. The party first filing a note of issue containing a demand for a jury trial, or if no filed note of issue contains such demand, the party first filing a notice demanding a jury trial as herein provided shall pay to the county clerk the jury fee therefor as provided in section fifteen hundred and fifty-seven-a of this act. The court in its discretion may relieve a party from a failure to comply with the provisions of this subdivision if no undue delay or prejudice to the rights of another party would result.2

1 As amended by N. Y. Laws 1943, c. 561. 2 As amended by Laws 1945, c. 264.