ON THE MERITS (8 P.2d 587) Department 2. On April 16, 1931, plaintiff filed its second amended complaint alleging that both plaintiff and defendant were duly organized corporations. It then alleged:
"That plaintiff was, on or about the 20th day of January, 1931, the owner and entitled to the possession of thirty-seven and one-half tons of alfalfa hay, grown during the year upon the following described premises." *Page 226
Then follows a description of the premises.
"That the defendant on or about the ____ day of January, 1931, wrongfully and unlawfully went upon the said premises, took possession of said hay, and removed it therefrom and unlawfully converted the same to its own use, to the plaintiff's damage."
It then alleged the value of the hay at $375 and that it had been damaged in said sum.
Defendant moved to strike this complaint, on the ground that the suit was initiated stating a cause of suit to cancel a mortgage and that this second amended complaint attempted to state a cause of action in conversion and no cause of suit, which motion was overruled.
The defendant thereupon filed its answer admitting the corporate capacity of the parties and admitting the value of the hay and denying all the other allegations of the complaint.
The history of this cause in the court is that on January 20, 1931, plaintiff filed a complaint on the equity side of the court claiming to be the owner of thirty-seven and one-half tons of hay in possession of J.R. Thompson and asking that a chattel mortgage, executed by said J.R. Thompson on said hay to defendant, be declared void, and for an order restraining defendant from interfering with said hay. Defendant filed a general demurrer to this complaint on the ground that it failed to state a cause of suit. The demurrer was overruled. Notwithstanding this, the plaintiff filed an amended complaint, still on the equity side of the court, setting forth in more detail its cause of suit, and asking for practically the same relief. Again defendant filed a general demurrer that the complaint did not state a cause of suit. This demurrer was *Page 227 also overruled. It would appear that thereafter plaintiff asked permission to file a second amended complaint, and on April 8, 1931, the court made an order wherein it was "Ordered and adjudged that the plaintiff be and it is hereby granted, leave to file herein a second amended complaint by changing the cause of suit to one in conversion." It was by virtue of this order that plaintiff filed its second amended complaint on which the cause was tried.
The case then went to trial on the second amended complaint and the answer thereto. It was set for hearing at the regular law term of the court and a jury duly impanelled. At the close of the evidence, the court called counsel into chambers where it seems a stipulation was entered into. This stipulation does not appear of record nor was it reduced to writing. There seems to be a misunderstanding as to just what was intended to have been done. The court, in its findings of fact, gives its version:
"At the close of the testimony, upon the suggestion of the court, which was consented to by the plaintiff and the defendant, the following questions were submitted to the jury, with the understanding that they were only to be considered as advisory to the court, the court reserving the right to try and determine said questions and all questions of fact, as well as questions of law it perceived." Abs. of Record, 32.
Appellant's version of what took place is:
"At the close of the testimony the court ordered a recess, called counsel into chambers and informed them that the court desired to submit two questions to the jury, in the form of a special verdict, that the jury was to act in an advisory capacity, and the court would decide the issue on the law as applied to the answers to the two questions submitted. The court's request was acceded to by counsel." Appellant's Brief, 7. *Page 228
Respondent's version is as follows:
"A jury was duly selected to hear the testimony, and after the testimony was in, the court deeming the case more one of equity than of law, announced that he would take the case away from the jury and try it himself, submitting only two questions to the jury, which was agreed to by appellant's counsel. The court, with the consent of counsel for both sides, expressly reserved the right to try the entire case and disregard the answers to the questions by the jury, the jury acting only in an advisory capacity. The jury answered the questions in the negative." Respondent's Brief, 6.
A special verdict was thereupon submitted to the jury in the form of two questions to be answered by the jury either in the affirmative or in the negative. An affirmative answer to either question would mean that plaintiff should recover, and a negative answer to both would be equivalent to a verdict for defendant. The jury returned the special verdict with both questions answered in the negative. The court thereafter ignored the special verdict of the jury and made findings in which he found in the affirmative on one of the questions to which the jury answered in the negative, and on all other matters found in favor of plaintiff and gave plaintiff judgment for $375, the total value of the personal property in question.
From this judgment defendant appeals.
If the second amended complaint and the answer thereto present any issue to be determined, it states a cause of action at law for trover and conversion, and as such must be tried and determined by the court and jury: Hunt v. First National Bank,102 Or. 398 (202 P. 564).
It cannot be determined from statements above quoted whether the parties consented to a complete *Page 229 waiver of a jury trial. The court may not, on his own motion, withdraw the cause from the jury. Trial by jury in civil cases is a constitutional right: Oregon Constitution, Art. 1, Sec. 17.
"Trial by jury may be waived by the several parties to an issue of fact, in action on contract, and with the assent of the court in other actions, in the manner following:
"1. By failing to appear at the trial;
"2. By written consent, in person, or by attorney, filed with the clerk;
"3. By oral consent in open court, entered in the minutes." Oregon Code 1930, 2-501, and cases cited under said section.
It is contended by appellant that the court erred in permitting plaintiff to file its second amended complaint because it changed the cause of action, after an issue of law had been tried by the court. While the second amended complaint transformed the cause from one in equity to one at law, the parties and the subject matter remained the same. The same relief was sought but in a different method.
"* * * No cause shall be dismissed for having been brought on the wrong side of the court. The plaintiff shall have a right to amend his pleadings to obviate any objection on that account * * *." Oregon Code 1930, 6-102; Cole v. Canadian Bank of Commerce,115 Or. 456 (239 P. 98); Spencer v. Wolff, 119 Or. 237 (243 P. 548); Brakebush v. Aasen, 126 Or. 1 (267 P. 1035).
The cause should have been submitted to the jury for their determination, or a jury trial should have been waived in the method pointed out in the statute.
For these reasons, the judgment will be reversed and the cause remanded.
BEAN, C.J., BROWN and BELT, JJ., concur. *Page 230