§ 25-1104 — Issues; how tried generally; court and jury

Nebraska § 25-1104

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

Issues of law must be tried by the court, unless referred as provided in section 25-1129 . 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.

Legislative History

Source: R.S.1867, Code § 280, p. 440; R.S.1913, § 7843; C.S.1922, § 8787; C.S.1929, § 20-1104; R.S.1943, § 25-1104. Annotations: 1. Trial to jury 2. Trial to court 3. Waiver of jury trial 4. Miscellaneous 1. Trial to jury A landlord's causes of action for breach of contract, breach of guaranty, and unjust enrichment against a commercial tenant and its personal guarantors raised issues of fact arising in actions for recovery of money, and as such, they were legal in nature, entitling tenant and guarantors to a jury trial unless waived. 132 Ventures v. Active Spine Physical Therapy, 313 Neb. 45, 982 N.W.2d 778 (2022). Cited in determining that material issues of fact in contested garnishment proceedings are triable to jury. Christiansen v. Moore, 184 Neb. 818, 172 N.W.2d 620 (1969). The value of an attorney's services is a jury question. Neighbors & Danielson v. West Nebraska Methodist Hospital, 162 Neb. 816, 77 N.W.2d 667 (1956). Ejectment is law action and triable to a jury, unless waived, notwithstanding equitable defenses are interposed. Foltz v. Brakhage, 151 Neb. 216, 36 N.W.2d 768 (1949). Trial by jury is mandatory only when the inherent nature of the issues to be determined, or the express terms of statutes which may be involved, so require. In re Guardianship of Warner, 137 Neb. 25, 288 N.W. 39 (1939). In cases in equity and those involving both law and equity, court may submit all issues of fact to jury, but it is not error to refuse to separate legal from equitable and try former to jury and latter to court. Rath v. Wilgus, 110 Neb. 810, 195 N.W. 115 (1923); Alter v. Bank of Stockham, 53 Neb. 223, 73 N.W. 667 (1897). A law action is not triable without a jury because there are issues incidental to main one which are equitable in their nature. Alter v. Skiles, 93 Neb. 597, 141 N.W. 187 (1913). Action on account of waste and conversion of property was triable to jury. Gandy v. Wiltse, 79 Neb. 280, 112 N.W. 569 (1907). Prosecutions under search and seizure law are not within the provisions of this section requiring jury trial. Sothman v. State, 66 Neb. 302, 92 N.W. 303 (1902). In suit on county treasurer's bond, to recover money embezzled, defendant was entitled to jury trial, although accounting was asked. Kuhl v. Pierce County, 44 Neb. 584, 62 N.W. 1066 (1895). 2. Trial to court An action to enforce an attorney's charging lien is equitable in nature and will not be tried before a jury. Barber v. Barber, 207 Neb. 101, 296 N.W.2d 463 (1980). Where a cause of action for equitable relief is stated and the plaintiff prays for equitable relief, a jury trial cannot be demanded as a matter of right by the defendant, even if defendant pleads legal defenses or has made a counterclaim for damages. Kuhlman v. Cargile, 200 Neb. 150, 262 N.W.2d 454 (1978). Where mortgage foreclosure proceeding is properly brought, questions of title arising therein can be litigated without a jury. Lincoln Joint Stock Land Bank v. Barnes, 143 Neb. 58, 8 N.W.2d 545 (1943). Party cannot demand jury on adverse possession issue in quiet title suit. Krumm v. Pillard, 104 Neb. 335, 177 N.W. 171 (1920). Issues raised by equitable counterclaim in law action are triable to court. Hotaling v. Tecumseh Nat. Bank, 55 Neb. 5, 75 N.W. 242 (1898). When a cause of action for equitable relief is stated, a jury cannot be demanded as a matter of right. Sharmer v. McIntosh, 43 Neb. 509, 61 N.W. 727 (1895). Cannot demand jury in mechanic's lien foreclosure. Dohle v. Omaha Foundry & Machine Co., 15 Neb. 436, 19 N.W. 644 (1884). Party is not entitled to general jury trial in actions quia timet. Roggencamp v. Converse, 15 Neb. 105, 17 N.W. 361 (1883); Harral & Uhl v. Gray, 10 Neb. 186, 4 N.W. 1040 (1880). Charge of contempt of court is not for jury. Gandy v. State, 13 Neb. 445, 14 N.W. 143 (1882). 3. Waiver of jury trial A commercial tenant and its personal guarantors did not waive their right to a jury trial on a landlord's causes of action for breach of contract, breach of guaranty, and unjust enrichment by failing to demand a jury trial for a previously and separately tried cause of action for forcible entry and detainer. 132 Ventures v. Active Spine Physical Therapy, 313 Neb. 45, 982 N.W.2d 778 (2022). A party’s waiver of a jury trial in district court is statutorily governed by section 25-1126, because it sets reasonable limits on a constitutional right. Section 25-1126 provides an exclusive list of the manners in which a waiver occurs. Unless a party’s conduct falls into one of that section’s three categories, a court will not find a waiver of a constitutional right. Section 25-1126 does not provide that a party waives the right to jury trial by failing to demand one. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014). Cases in which the parties tried issues of fact to the court without objection or asked for a directed verdict should be construed as falling into the “oral consent” category of waivers. Such conduct is inconsistent with demanding a jury trial, and the trial court’s judgment operates as its assent to the procedure. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014). Merely failing to object, before trial, to a defendant’s request for a bench trial on a bifurcated affirmative defense is not oral consent in open court to waive a jury trial. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014). A jury trial is not required by this section in an action to foreclose a mortgage on personal property and for a deficiency judgment. State Securities Co. v. Corkle, 191 Neb. 578, 216 N.W.2d 879 (1974). Where the constitutional right to a trial by jury exists, the cause cannot be referred in the absence of waiver of that right. Yager v. Exchange Nat. Bank of Hastings, 52 Neb. 321, 72 N.W. 211 (1897). Waiver of jury is presumed to be general and not for a particular term. Boslow v. Shenberger, 52 Neb. 164, 71 N.W. 1012 (1897). Form in which issues are made up is waived, unless objected to. Hay v. Miller, 48 Neb. 156, 66 N.W. 1115 (1896); Downie v. Ladd, 22 Neb. 531, 35 N.W. 388 (1887). Where issues of fact are tried by court without objection appearing of record, presumption is that jury was waived. Davis v. Snyder, 45 Neb. 415, 63 N.W. 789 (1895). 4. Miscellaneous This section fails to specify that a school district reorganization case is entitled to jury trial. Schroeder v. Oeltjen, 184 Neb. 8, 165 N.W.2d 81 (1969). Appeal from action of county superintendents in reorganization of school districts was triable de novo. Roy v. Bladen School Dist. No. R-31, 165 Neb. 170, 84 N.W.2d 119 (1957). After overruling of motion for summary judgment, case is retained for trial as in any other civil action. Rehn v. Bingaman, 157 Neb. 467, 59 N.W.2d 614 (1953). Practice of nonsuiting plaintiff at close of opening statements to jury disapproved. Temple v. Cotton Transfer Co., 126 Neb. 287, 253 N.W. 349 (1934). Nature of action is determined from pleadings. Lett v. Hammond, 59 Neb. 339, 80 N.W. 1042 (1899).