ALVIN STUKEY and J. H. WILLIAMS, Appellants,
ANNIE STEPHENS, Administratrix of the Estate of W. B. STEPHENS, Deceased, ROSCOE STEPHENS, RAY STEPHENS and DICK STEPHENS, Appellees
APPEAL from a judgment of the Superior Court of the County of Mojave. M. T. Phelps, Judge. Judgment reversed and case remanded for new trial.
Mr. Louis L. Wallace and Mr. John A. Ellis, for Appellants.
Mr. C. G. Dolman, Mr. E. Elmo Bollinger, and Mr. E. S. Clark, for Appellees.
[37 Ariz. 515] LOCKWOOD, J.
W. B. Stephens, Roscoe Stephens, Ray Stephens and Dick Stephens, hereinafter called plaintiffs, brought suit against Alvin Stukey and J. H. Williams, hereinafter called defendants, for an injunction restraining and enjoining defendants from grazing or herding or watering their livestock upon certain property named in the amended complaint. The case was tried to the court without a jury, and findings of fact and conclusions of law were made and judgment rendered thereon against defendant Williams, and from the judgment rendered and the order denying the motion for a new trial he has appealed.
There are some sixteen assignments of error, many of which contain several subdivisions, but we think we need consider only one in determining whether or not the judgment should be affirmed. It is that the court erred in denying defendants a jury trial. [37 Ariz. 516]
Under the law of Arizona either party to any litigation in the superior court is entitled as a matter of right and not discretion to a jury trial. Brown v. Greer, 16 Ariz. 215, 141 P. 841. This applies in equity as
well as in law cases, and the fact that at present the verdict of the jury in an equity case is merely advisory does not change the rule. Brown v. Greer, supra; Donahue v. Babbitt, 26 Ariz. 542, 227 P. 995. While the court need not heed the advice of the jury, it must harken to it. Security Trust & Sav. Bank v. McClure, 29 Ariz. 325, 241 P. 515; Light v. Chandler Imp. Co., 33 Ariz. 101, 59 A.L.R. 107, 261 P. 969. This right, however, may be waived, and we have held that unless it is demanded seasonably such failure is equivalent to a waiver of a jury. Jenkins v. Skelton, 21 Ariz. 663, 192 P. 249; Mounce v. Wightman, 30 Ariz. 45, 44 A.L.R. 754, 243 P. 916. With these principles of law before us, let us examine the record to determine whether the court erred in refusing defendants a jury trial.
On examining the judgment-roll, we find that on the seventh day of April, 1928, and before the case was at issue, the following written request was duly filed in the superior court:
"Come now the Plaintiffs and request a jury trial in the above entitled action.
"CLARK & CLARK,
"C. G. DOLMAN,
"Attorneys for Plaintiffs."