delivered the opinion of the Court.
Mr. J. Heydeneeldt concurred.This appeal is prosecuted from an order of the Court below granting a new trial.
The decision of the Court is based upon the fact that the cause was tried by the Court without a jury.
* The record shows the defendant did not appear [113] at the time of trial. The 179th section of the Practice Act provides that a trial by jury shall be waived “by failing to appear at the trial.’'
The attention of the Court could not have been directed to this section. The language is too explicit to admit of more than one construction; and the mere act of filing an answer does not operate as an appearance at the trial.
Judgment reversed.