Ware v. Nottinger

35 Ill. 375

• Court: Illinois Supreme Court
• Decided: April 15, 1864
• Status: Published

Opinion

Mr. Justice Breese

delivered the opinion of the Court:

No agreement that the court should try the issues made up in this cause, appears in the record, except the recital in the order of court, which order appears to have been made after the attorneys for the defendant had withdrawn from the case, which withdrawal took place before the court had disposed of the demurrers.

There is nothing then, in the record, to show that a jury was waived. If not waived, then the defendant’s constitutional right to have a jury to try the issues was invaded. Const, art., 13, § 6. No waiver of a jury, or of submission to the court alone, appears to have been made while the defendant had an attorney in court.

For this irregularity the judgment must be reversed.

Judgment reversed.