Johnson, Judge,
delivered the opinion of the Court:
The first error assigned is to the judgment of the court in overruling the demurrer to the declaration.
No defect in the declaration is pointed out, and I have found none therein. The demurrer was properly overruled.
Syllabus 1 The second error assigned is to the rejection of defendants’ special plea in writing. The plea was not made a part of the record; no bill of exceptions appears in the record to the rejection of the pleas; and the record does not show that the defendants excepted, or objected to the action of the court in rejecting the plea. When a plea is tendered by a defendant in an action at law, and rejected by the court, it is no part of the record, unless there is a bill of exceptions to the rejection thereof, or the record shows, that the plea was tendered and rejected, and the defendant objected, or excepted to the action of the court in rejecting the plea. If this is not done, the defendant will b.e presumed to have acquiesced in the rejection of the plea. Sweeney v. Baker et al. infra.
The third error complained of is: That the judgment for $500.00 was rendered on the 24th day of March, Syllabus 2 1874. without the intervention of a jury, it not appearing that the matter was referred to the court by consent of parties, nor that neither party required a jury. Here again there was not even an objection to the action of the court. The order shows that the parties were all present when it was entered; that it appeared to the court that there was at least $500.00 due the plaintiff over and above the amount controverted by defendants. [695]*695and without any objection on tbeir part. It showed that there was at least $500.00jclue the plaintiff, that the defendants did not controvert. If they did not controvert $500.00 of the plaintiff’s demand, what did they want with a jury as to that amount? It is true they had pleaded “ conditions performed,” but if the order was a consent order, and in part their own making, and showing as it did that the defendants did not controvert $500.00 of the plaintiff’s demand, it was equivalent to a withdrawal of their plea as to that amount, and confession of judgment thereof. But if we are not at liberty to regard it as a consent order, as to the matter in question, which we do not now decide, there was no error committed to the prejudice of the defendants, as we must presume that the defendants, when the last judgment was entered, received credit for the $500.00, for which judgment had been previously entered. That judgment shows that neither party required a jury, and that the court was substituted in lieu of a jury, “and the court proceeding to hear the evidence and to ascertain the amount due from the defendants to the plaintiff; and having heard all the evidence and argument of counsel, doth find for the plaintiff $1,068.75, with legal interest thereon from the 21st day of July, 1875,” which was the date of the judgment; and then entered a formal judgment for that sum. "We must presume that the court in ascertaining what was due, deducted from its calculation the $500.00 for which judgment was before rendered, in the absence of any exception on the part of defendants, showing that judgment had been given for the $500.00 twice. The presumption is always in favor of the correctness of the judgment of the court below. Miller v. Shrewsbury, 10 W. Va. 395.
Syllal™s 8 The fifth error assigned is, that the court erred in rendering the judgment of the 21st of July, 1875, without the intervention of a jury, and without the consent of the parties, or their consent entered of record as required by section 35, of chapter 47 of the Acts of 1872-3,
[696]*696Section 7 of chapter 131 of the Code provides : “The court; in any action at law, if neither party requires a jury, or if the defendant has failed to appear, may ascertain the amount the plaintiff is entitled to recover in the action, if any, and render judgment accordingly.”
The 13th section of the bill of rights, provides : “ In suits at common law, where the value in controversy, exclusive of interest and costs exceeds $20.00, the right of trial by a jury of twelve men, if required by either party, shall be preserved, &c.” The Code then in existence did not conflict with this provision of the bill of rights, but was in exact accordance with it.
Section 35 of chapter 47, acts of 1872-3, provides, that “in any case, except a case of felony, in which a trial by jury would be otherwise proper, the parties, or their counsel, by consent entered of record, may waive the right to have a jury, and thereupon the whole matter of law and fact, may be heard and determined, and judgment given by the court,” &c.
In The Madison and Indianapolis R. R. Co. v. Whiteneck, 8 Ind. 217, it was held, that “ if a party voluntarily abstain from claiming the right of trial by jury in a given case, it may be judicially held that it is waived. Judge Perkins said, in delivering the opinion of the court in that case, “ It is said a jury should have been called to assess the damages, notwithstanding the failure of the defendant to appear, as the case stood upon the general issue. The Constitution of our State does not say that trials shall be by jury. It says: ‘The right of trial by jury shall remain, &c.’. If a party voluntarily abstain from claiming the right in a given case, we think it may be judicially held that it is waived. Hence the statute enacting that such act shall be regarded as a waiver, is valid.”
In Miller v. Hayford, 1 Wis. 40, it was held, “ if a party in a county court do not object to a trial by a jury of six persons as prescribed by the statute, or if he join in the selection of such jury, he will be deemed to have [697]*697consented to submit his case to their decision, and to have waived his right to a jury of twelve.” The court said; “By the seventeenth section of the statute, the selection of the jurors is given to both parties in the mode prescribed, and if either party refuse or neglect to take part in choosing the jurors, the court or the clerk may act for such party. We are not informed by the record, that the plaintiff in error made any objections to the jury, and we are to presume that he took part in their selection, for if he did not demand the jury, and did not participate in selecting the jurors, it lies with him to show such a state of facts, and in the absence of any objection, or refusal we must presume that the plaintiff in error consented to submit his case to thejury, as allowed by the statute.”
In Greason v. Keteltas, 17 N. Y. 498. The court said, “the right of trial by jury in a proper case is absolute, and any decision of the court overruling or denying such right would be plainly erroneous. But it is a right which may be waived, and if a party who is entitled to it enters voluntarily upon a trial by the court without objection, he would ordinarily, no doubt, be understood as consenting to that form of trial.” The above decision was approved in Barlow v. Scott, 24 N. Y. 40. We think that while there was no formal consent entered of record to the court trying the case in lieu of a jury, yet the record shows that the defendants were present in court and did not require a jury.
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Johnson, Judge,
delivered the opinion of the Court:
The first error assigned is to the judgment of the court in overruling the demurrer to the declaration.
No defect in the declaration is pointed out, and I have found none therein. The demurrer was properly overruled.
Syllabus 1 The second error assigned is to the rejection of defendants’ special plea in writing. The plea was not made a part of the record; no bill of exceptions appears in the record to the rejection of the pleas; and the record does not show that the defendants excepted, or objected to the action of the court in rejecting the plea. When a plea is tendered by a defendant in an action at law, and rejected by the court, it is no part of the record, unless there is a bill of exceptions to the rejection thereof, or the record shows, that the plea was tendered and rejected, and the defendant objected, or excepted to the action of the court in rejecting the plea. If this is not done, the defendant will b.e presumed to have acquiesced in the rejection of the plea. Sweeney v. Baker et al. infra.
The third error complained of is: That the judgment for $500.00 was rendered on the 24th day of March, Syllabus 2 1874. without the intervention of a jury, it not appearing that the matter was referred to the court by consent of parties, nor that neither party required a jury. Here again there was not even an objection to the action of the court. The order shows that the parties were all present when it was entered; that it appeared to the court that there was at least $500.00 due the plaintiff over and above the amount controverted by defendants. [695]*695and without any objection on tbeir part. It showed that there was at least $500.00jclue the plaintiff, that the defendants did not controvert. If they did not controvert $500.00 of the plaintiff’s demand, what did they want with a jury as to that amount? It is true they had pleaded “ conditions performed,” but if the order was a consent order, and in part their own making, and showing as it did that the defendants did not controvert $500.00 of the plaintiff’s demand, it was equivalent to a withdrawal of their plea as to that amount, and confession of judgment thereof. But if we are not at liberty to regard it as a consent order, as to the matter in question, which we do not now decide, there was no error committed to the prejudice of the defendants, as we must presume that the defendants, when the last judgment was entered, received credit for the $500.00, for which judgment had been previously entered. That judgment shows that neither party required a jury, and that the court was substituted in lieu of a jury, “and the court proceeding to hear the evidence and to ascertain the amount due from the defendants to the plaintiff; and having heard all the evidence and argument of counsel, doth find for the plaintiff $1,068.75, with legal interest thereon from the 21st day of July, 1875,” which was the date of the judgment; and then entered a formal judgment for that sum. "We must presume that the court in ascertaining what was due, deducted from its calculation the $500.00 for which judgment was before rendered, in the absence of any exception on the part of defendants, showing that judgment had been given for the $500.00 twice. The presumption is always in favor of the correctness of the judgment of the court below. Miller v. Shrewsbury, 10 W. Va. 395.
Syllal™s 8 The fifth error assigned is, that the court erred in rendering the judgment of the 21st of July, 1875, without the intervention of a jury, and without the consent of the parties, or their consent entered of record as required by section 35, of chapter 47 of the Acts of 1872-3,
[696]*696Section 7 of chapter 131 of the Code provides : “The court; in any action at law, if neither party requires a jury, or if the defendant has failed to appear, may ascertain the amount the plaintiff is entitled to recover in the action, if any, and render judgment accordingly.”
The 13th section of the bill of rights, provides : “ In suits at common law, where the value in controversy, exclusive of interest and costs exceeds $20.00, the right of trial by a jury of twelve men, if required by either party, shall be preserved, &c.” The Code then in existence did not conflict with this provision of the bill of rights, but was in exact accordance with it.
Section 35 of chapter 47, acts of 1872-3, provides, that “in any case, except a case of felony, in which a trial by jury would be otherwise proper, the parties, or their counsel, by consent entered of record, may waive the right to have a jury, and thereupon the whole matter of law and fact, may be heard and determined, and judgment given by the court,” &c.
In The Madison and Indianapolis R. R. Co. v. Whiteneck, 8 Ind. 217, it was held, that “ if a party voluntarily abstain from claiming the right of trial by jury in a given case, it may be judicially held that it is waived. Judge Perkins said, in delivering the opinion of the court in that case, “ It is said a jury should have been called to assess the damages, notwithstanding the failure of the defendant to appear, as the case stood upon the general issue. The Constitution of our State does not say that trials shall be by jury. It says: ‘The right of trial by jury shall remain, &c.’. If a party voluntarily abstain from claiming the right in a given case, we think it may be judicially held that it is waived. Hence the statute enacting that such act shall be regarded as a waiver, is valid.”
In Miller v. Hayford, 1 Wis. 40, it was held, “ if a party in a county court do not object to a trial by a jury of six persons as prescribed by the statute, or if he join in the selection of such jury, he will be deemed to have [697]*697consented to submit his case to their decision, and to have waived his right to a jury of twelve.” The court said; “By the seventeenth section of the statute, the selection of the jurors is given to both parties in the mode prescribed, and if either party refuse or neglect to take part in choosing the jurors, the court or the clerk may act for such party. We are not informed by the record, that the plaintiff in error made any objections to the jury, and we are to presume that he took part in their selection, for if he did not demand the jury, and did not participate in selecting the jurors, it lies with him to show such a state of facts, and in the absence of any objection, or refusal we must presume that the plaintiff in error consented to submit his case to thejury, as allowed by the statute.”
In Greason v. Keteltas, 17 N. Y. 498. The court said, “the right of trial by jury in a proper case is absolute, and any decision of the court overruling or denying such right would be plainly erroneous. But it is a right which may be waived, and if a party who is entitled to it enters voluntarily upon a trial by the court without objection, he would ordinarily, no doubt, be understood as consenting to that form of trial.” The above decision was approved in Barlow v. Scott, 24 N. Y. 40. We think that while there was no formal consent entered of record to the court trying the case in lieu of a jury, yet the record shows that the defendants were present in court and did not require a jury. The record states that, “neither party required a jury, which was equivalent to the defendants consent entered of record that the court should try the case in lieu oí a jury. The judgment was authorized under the Constitution and Syllabus 4 Code, and the provision of the Code on the subject is un-repealed. It is not inconsistent with section 35 of chapter 47 of the acts 1872-3. We think even according to the provisions of the last named statute, the consent sufficiently appeared on the record. The parties were all present, and the record shows that neither “party [698]*698required a jury.” That was equivalent to saying that, “we consent that the court may try the case in lieu of a j ury.
It is also assigned as error that the court should not in its last judgment have given costs, without saying whether it was for costs generally or only for additional costs. There being no other error, even if this was one, Syllabus 5 and we do not think it is as we understand the last judgment to have been only for the additional costs accrued after the first judgment, the Appellate Court would not reverse the judgment on a question of costs. Boggess’s heirs v. Robinson’s heirs, 5 W. Va. 402.
The judgment of the circuit court must be affirmed with costs and damages according to law.
The other Judges concurred.
Judgment affirmed.