I agree the judgment appealed from must be reversed, but I do not concur in the reasoning of the majority opinion. I think the opinion goes contrary to statutes and former decisions.
When the jury returned its general verdict for the defendants, it was the duty of the trial judge to render judgment accordingly. Section 427, O. S. 1931, 12 Okla. St. Ann. § 696.
As the majority opinion discloses, there were issues of fact in the action, and it was an action for the recovery of specific real property and money. Therefore, the issues of fact were triable by jury and not by the court. It is expressly so provided by section 350, O. S. 1931, 12 Okla. St. Ann. § 556. It is so held in the following cases, as I construe them: Likowski v. Catlett, 130 Okla. 71, 265 P. 117; Abrams v. Neal,178 Okla. 158, 61 P.2d 1103; Fitz-Gerald, Adm'r, v. Lightfoot,180 Okla. 598, 71 P.2d 707; Halsell v. Beartail, 107 Okla. 103,227 P. 392; Gill v. Fixico, 77 Okla. 151, 187 P. 474; Mitchell v. Gafford, 73 Okla. 152, 175 P. 227, and Lively v. Butler,108 Okla. 225, 236 P. 18.
There was no waiver of jury. Timely demand for jury trial was made and *Page 552 granted. At the close of the evidence plaintiff moved for discharge of the jury and for determination by the court as in a case triable to the court without a jury. This motion was overruled, and properly so, as I view it. It was after verdict the trial court concluded otherwise and rendered judgment contrary to the verdict. That is the reversible error, as I view it.
I am authorized to say that Mr. Vice Chief Justice CORN concurs in these views.