This is an action for a partition of certain described land. The defendants, Rosa Rovegno and Jiacoma Rovegno, appeal from an order denying their motions for a new trial. The only point which they insist on for a reversal of the order is that the court below erred in denying their demand for a jury.
Whether or not certain issues in the case were of such a character as to give to appellants the general right to have them tried before a jury is a question not necessary to be here determined; for we think that the court, for specific reasons hereinafter mentioned, did not err in refusing the demand.
The case was tried on the 20th of October, 1893, but it had been on the trial calendar several weeks prior to that time, marked as a court case as distinguished from a jury case in accordance with the custom of the court. This fact was well known to the parties, and appellants never asked to have it changed from "court" to "jury," and had not demanded a jury until the said 30th of October. On the latter day, when the case came on regularly to be tried, one of the defendants, Stefano Rovegno, moved for a continuance, and, the motion having been denied, demanded a jury, and the demand was denied. Then these appellants, who had not joined in the motion for a continuance, also demanded a jury and their demand was refused. On September 20th the case had been called for trial, and appellants had answered "ready" without any intimation that they desired a jury; but, owing to the number of cases before it on the calendar, it was not reached until October 20th, at which time there was no jury in attendance. The record, at this stage, merely shows the naked facts that appellants made a demand for a jury and that the court denied it; nothing further appears. But in another part of the record it is shown that there was a rule of court providing that "a party demanding a jury shall before the commencement of the trial deposit with the clerk of the court the fees necessary therefor" — specifying the amount; *Page 641 and appellants did not make nor offer to make such deposit. InAdams v. Crawford, 116 Cal. 495, it was held that such a rule is reasonable and must be complied with. Under these circumstances, it does not appear that the court erred in denying the demand for a jury, and such denial does not therefore warrant a new trial.
The order appealed from is affirmed.
Temple, J., and Henshaw, J., concurred.
Hearing in Bank denied.
Beatty, C.J., dissented from the order denying a hearing in Bank, and filed the following opinion thereon on the 14th of January, 1901: