Mu. Justice Neil
delivered the opinion of the Court.
The first question to be determined on this appeal depends upon the construction and validity of rule 35 of the chancery court of Davidson county. ' That rule, so far as it is necessary to quote, for the purposes of the present inquiry, reads as follows:
[703] “Rule 35. Application for a jury must be made by petition in open court upon tbe first day of tbe trial term.”
Tbe cause was put at issue by tbe filing of an answer during tbe April term, 1904. Tbe jury was demanded by defendant on tbe 1st day of tbe October term, 1905. Tbe chancellor declined to grant tbe application, and bis action is defended bere under tbe rule above quoted.
It is insisted by tbe defendant that a proper construction of tbe rule would authorize an application for the jury at any term of tbe court at Avhich tbe case might be tried. Tbe complainants insist that tbe true construction is tbe first term at which tbe case is triable. This was tbe view adopted by tbe learned court of chancery appeals.
It is also insisted by tbe defendant that under tbe sections of tbe Code, which authorize trials by jury in chancery, an application can be made at any time during any term after tbe cause is at issue, and that tbe rule above quoted is in any event contrary to tbe sections of tbe Code referred to-, and is void.
Tbe Code sections upon tbe subject are as follows:
“6282. Either party may have jury. — Either party to a suit in chancery is entitled, upon application, to a jury to try and determine any material fact in dispute, and all tbe issues of fact in any case shall be submitted to one jury.
“6283. At first term, when. — If tbe demand is made in tbe pleadings, tbe cause shall be tried at tbe first [704] term before a jury summoned instanter, in tbe same way that jury causes are tried at law.
“6284. When cause is ready for hearing. — If the demand is only made after the cause is ready for hearing, the trial will be before a jury summoned instanter upon the like evidence as a suit at law, together with such parts of the bill, answers, depositions, and other proceedings in the cause, as the court may order.
“6285. Issues. — The issues shall be made up by the parties under the direction of the court, and set forth briefly and clearly the true questions of fact to be tried.
“6286. Trial. — The trial shall be conducted like other jury trials at law, the finding of the jury having the same force and effect, and the court having the same power and control over the finding, as on such trials at law.
“6287. Witnesses. — The parties in all jury trials in chancery (may) summon witnesses and enforce their attendance, as at law.”
The sections of the Code which authorize the chancellors to make rules are the following:
“5739. Majority may make rules. — The chancellors of this State, or a majority of them, may make such rules as they may deem beneficial and proper to regulate the practice of the chancery courts, not inconsistent with the provisions of this Code; and the rules thus agreed upon shall be obligatory on all the chancery courts.
“5740. If not, each chancellor may. — In the absence [705] of any such action by the chancellors as a body, each chancellor may make rules and regulations of practice for the purpose of expediting business in his own chancery division.”
It is observed that the sections last quoted forbid the making of any rules which are inconsistent with the provisions of the Code.
The rule above quoted has no application to the case contemplated in Code, sec. 6288. If there be any conflict it must be with the provisions of section 6284. This provides for the making of an application “after the cause is ready for hearing.” That section does not, in terms, give the right to demand a jury at any time after the cause is ready for hearing. This omission left the matter open to regulation by rule of the court under the sections of the Code above quoted upon that subject.
. The validity of such rules was elaborately considered by this court in the case of Cheatham v. Pearce, 89 Tenn., 670-691 et seq., 15 S. W., 1080. See, also, the case of Stadler v. Herts, 13 Lea, 318, 319.
In the case last cited, the rule which the court considered and held valid contained the provision that no jury should be allowed in the court, unless the demand therefor should be made on or before the second day of the term on the motion docket or at the bar of the court. The rule which was held valid in Cheatham v. Pearce, was “that application for a jury must be made within the first three days of the trial term.”
[706] The following sections of the Code throw light upon the subject.
“6138. Issue and trial. — If the plaintiff do not except to the answer within the time prescribed by law, the issue shall be regarded as made in the same way as if replication had been filed, and the cause shall stand for trial at the first term of the court after answer filed; and, if at that or any other term the cause is continued, it shall stand for hearing at the next term.
“6210. Notice of answer filed; twenty days’ exception. — When an answer has been filed, the clerk and master shall notify the complainant’s solicitor of the fact, by letter or otherwise, and he may,,within twenty days, file exceptions thereto.
“6211. If no exception, cause at issue; trial at first term. — If the plaintiff fail to except to the answer within said time, the cause shall be at issue, and stand for trial at the first term after the answer is filed.
“6244. Causes at issue without replication, and stand for trial at first term. — All causes are at issue, without replication filed, if the plaintiff fail to except to the answer of the defendant within the time prescribed by law, and shall stand for trial at the first term of the court after answer filed, and at every term thereafter, if not then heard.”
The first trial term is the term at which the issue is thus made up.
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Mu. Justice Neil
delivered the opinion of the Court.
The first question to be determined on this appeal depends upon the construction and validity of rule 35 of the chancery court of Davidson county. ' That rule, so far as it is necessary to quote, for the purposes of the present inquiry, reads as follows:
[703] “Rule 35. Application for a jury must be made by petition in open court upon tbe first day of tbe trial term.”
Tbe cause was put at issue by tbe filing of an answer during tbe April term, 1904. Tbe jury was demanded by defendant on tbe 1st day of tbe October term, 1905. Tbe chancellor declined to grant tbe application, and bis action is defended bere under tbe rule above quoted.
It is insisted by tbe defendant that a proper construction of tbe rule would authorize an application for the jury at any term of tbe court at Avhich tbe case might be tried. Tbe complainants insist that tbe true construction is tbe first term at which tbe case is triable. This was tbe view adopted by tbe learned court of chancery appeals.
It is also insisted by tbe defendant that under tbe sections of tbe Code, which authorize trials by jury in chancery, an application can be made at any time during any term after tbe cause is at issue, and that tbe rule above quoted is in any event contrary to tbe sections of tbe Code referred to-, and is void.
Tbe Code sections upon tbe subject are as follows:
“6282. Either party may have jury. — Either party to a suit in chancery is entitled, upon application, to a jury to try and determine any material fact in dispute, and all tbe issues of fact in any case shall be submitted to one jury.
“6283. At first term, when. — If tbe demand is made in tbe pleadings, tbe cause shall be tried at tbe first [704] term before a jury summoned instanter, in tbe same way that jury causes are tried at law.
“6284. When cause is ready for hearing. — If the demand is only made after the cause is ready for hearing, the trial will be before a jury summoned instanter upon the like evidence as a suit at law, together with such parts of the bill, answers, depositions, and other proceedings in the cause, as the court may order.
“6285. Issues. — The issues shall be made up by the parties under the direction of the court, and set forth briefly and clearly the true questions of fact to be tried.
“6286. Trial. — The trial shall be conducted like other jury trials at law, the finding of the jury having the same force and effect, and the court having the same power and control over the finding, as on such trials at law.
“6287. Witnesses. — The parties in all jury trials in chancery (may) summon witnesses and enforce their attendance, as at law.”
The sections of the Code which authorize the chancellors to make rules are the following:
“5739. Majority may make rules. — The chancellors of this State, or a majority of them, may make such rules as they may deem beneficial and proper to regulate the practice of the chancery courts, not inconsistent with the provisions of this Code; and the rules thus agreed upon shall be obligatory on all the chancery courts.
“5740. If not, each chancellor may. — In the absence [705] of any such action by the chancellors as a body, each chancellor may make rules and regulations of practice for the purpose of expediting business in his own chancery division.”
It is observed that the sections last quoted forbid the making of any rules which are inconsistent with the provisions of the Code.
The rule above quoted has no application to the case contemplated in Code, sec. 6288. If there be any conflict it must be with the provisions of section 6284. This provides for the making of an application “after the cause is ready for hearing.” That section does not, in terms, give the right to demand a jury at any time after the cause is ready for hearing. This omission left the matter open to regulation by rule of the court under the sections of the Code above quoted upon that subject.
. The validity of such rules was elaborately considered by this court in the case of Cheatham v. Pearce, 89 Tenn., 670-691 et seq., 15 S. W., 1080. See, also, the case of Stadler v. Herts, 13 Lea, 318, 319.
In the case last cited, the rule which the court considered and held valid contained the provision that no jury should be allowed in the court, unless the demand therefor should be made on or before the second day of the term on the motion docket or at the bar of the court. The rule which was held valid in Cheatham v. Pearce, was “that application for a jury must be made within the first three days of the trial term.”
[706] The following sections of the Code throw light upon the subject.
“6138. Issue and trial. — If the plaintiff do not except to the answer within the time prescribed by law, the issue shall be regarded as made in the same way as if replication had been filed, and the cause shall stand for trial at the first term of the court after answer filed; and, if at that or any other term the cause is continued, it shall stand for hearing at the next term.
“6210. Notice of answer filed; twenty days’ exception. — When an answer has been filed, the clerk and master shall notify the complainant’s solicitor of the fact, by letter or otherwise, and he may,,within twenty days, file exceptions thereto.
“6211. If no exception, cause at issue; trial at first term. — If the plaintiff fail to except to the answer within said time, the cause shall be at issue, and stand for trial at the first term after the answer is filed.
“6244. Causes at issue without replication, and stand for trial at first term. — All causes are at issue, without replication filed, if the plaintiff fail to except to the answer of the defendant within the time prescribed by law, and shall stand for trial at the first term of the court after answer filed, and at every term thereafter, if not then heard.”
The first trial term is the term at which the issue is thus made up.
Does the rule mean that the jury must be demanded at this term? If so it must be held void as in conflict [707] with, section 6284 of Shannon’s Code. That section plainly contemplates that a jury may be demanded “after the canse is ready for hearing.” That this does not mean merely after the canse is at issue is shown by the provision further on in the section that upon such demand being made the cause may be heard, among other things, on “depositions, and other proceedings in the cause.” This indicates that the legislature had in mind a case which had been sufficiently long at issue to permit the parties to take evidence in the form of depositions ; indeed the ordinary occurrence in practice wherein it appears the cause has been put at issue and the parties have prepared it either partially or wholly by the taking and filing of depositions, documentary evidence, etc. These provisions cannot be harmonized with a rule requiring the demand of a jury on the first day of the first term at which the cause could be tried, that is on the first day of the term at which the cause is put at issue. For example, the present cause was put at issue on June 4, 1904, which was during the April term of the court. The construction insisted upon would require that the jury should have been demanded on the first Monday in April, 1904, which was the first day of the first term at which the cause was put at issue, and at which it was triable; that is that it should have been demanded months before issue made, and before it was possible that there could be any depositions on file in the cause.
The rule should be so construed as to bring it into har[708] mony, if possible, with the Code section last referred to. This harmony is effected by construing it to mean that the jury shall be demanded on the first day of the term at which the cause shall be tried.
. The learned court of chancery appeals was in error in its citation of the case of Cheatham v. Pearce, supra, as supporting its construction. An examination of that case will disclose that the bill was filed July 22, 1889, against C. S. Pearce and Thomas Ryan, as partners, and also against C. B. & C. D. Pearce (89 Tenn., 672, 15 S. W., 1080) ; that a plea in abatement and an answer to so much of the bill as was not covered by the plea, were filed by Pearce & Ryan, September 2, 1889 (89 Tenn., 673, 675, 15 S. W., 1081, 1082) ; that on the same day C. B. & C. D. Pearce filed a plea in abatement (89 Tenn., 675, 15 S. W., 1082), to the whole bill (89 Tenn., 680, 15 S. W., 1083) ; that on November 27, 1889, a replication was filed by the complainant to both pleas (89 Tenn., 682,15 S. W., 1083), which was during the October term, 1889. Thus the cause was put at issue during that term. A jury was demanded in the replications, but this was held ineffective, because not called to the attention of the chancellor. On this special phase of the matter the court said (page 696 of 89 Tenn., page 1086 of 15 S. W.) : “We believe no case can be found in our reports where the chancellor has ever ordered a, jury trial at the application of one of the parties unless the application was made to the chancellor by motion in open court; and a demand for a jury in a repli[709] cation or other pleading is not a compliance with, the practice.”1 The application which the court had under examination and which it considered and treated as the only formal application for a jury trial in the cause was the one which was made on May 27, 1890 (89 Tenn., 683, 15 S. W., 1083), which was during the April term, 1890, at which term the canse was in fact tried (89 Tenn., 686, 15 S. W., 1084), and of this application, the court said: “It is true that complainant did apply to the chancellor in open court for a jury, hut unfortunately, the application was not made Svithin the first three days of the trial term’ as required by the rule of April 10, 1889, and therefore was made too late.” 89 Tenn., 696, 697, 15 S. W., 1086, 1087.
It is thus seen that the court’s view of the matter, as expressed in the opinion referred to, was that the term intended was the term at which the cause was actually tried, and that the decision was that the jury must under the rule be demanded within the first three days of that term; not within the first three days of the term at which the cause was first triable.
The same result is reached on a careful examination of Stadler v. Hertz, supra. When the application for a jury was made the cause had been at issue about a year, and no evidence had been filed by. the complainants. When forced into trial after this lapse of time they demanded a jury in order that they might escape the effect of their failure to take proof at an earlier date. Speaking to this subject the court said: “Nor do we think [710] that the court below was in error in refusing a jury to complainants. Por the purpose of saving costs and time, and to have all jury cases tried about the same time, and for the convenience of the court as recited therein, a rule of court was published and entered upon the minutes of the court, declaring that no jury will hereafter be allowed in this court, unless the demand therefor be made on or before the second day of the term, by motion on the motion docket, or at the bar of the court. This we think a reasonable regulation, preventing surprise to the adverse party and affording opportunity to obtain a jury. The motion in this case was made more than a week after the beginning of the term, and on the same day on which the cause was heard and the decree entered.”
It is apparent that the court entertained the view that the application would have been in time if made on or before the second day of the term at which the cause was tried. It follows, therefore, that the application in the present case was within time, under a true construction of the rule, having been made on the first day of the term at which the cause was tried.
However, the jury was properly denied to the complainant, because he had waived the right by applying at the previous term for and obtaining a reference of the cause to the master. The hearing had. at the October term was on the report of the master. By such successful application for a reference the complainant waived the right to a jury trial. He could not have such [711] a trial upon the report of the master. Martin v. Martin, 24 S. C., 446; Rivas v. Summers, 33 Fla., 539, 15 South., 319; Baird v. City of New York, 74 N. Y., 382.
On the ground last stated the decree of the court of chancery appeals is affirmed, with costs.