(dissenting).
I find myself in a rather novel position. Generally speaking, I do not disagree with what Judge Bindley has written. My point is that the opinion hardly mentions, much less decides, the sole *50issue raised on this appeal. The contested issue as stated by plaintiff is:
“The contested issue is whether or not in an anti-trust action seeking only damages, a timely jury demand having been made, the court can try without a jury the separate issue of limitations raised in the answers as affirmative defenses, the plaintiff having alleged various overt acts within the period of limitations.”
The contested issue as stated by defendants is:
“The facts in this case present as an issue the question of whether the trial of the separate issue of the Statute of Limitations by the Court without a jury constitutes prejudicial or reversible error, in view of the trial court’s finding that there was no genuine issue as to a material fact based on the evidence adduced by the parties (none of which appellant has included in the record on appeal), and its ruling that, as a matter of law, the action was barred by the Statute of Limitations.”
The latter portion of this statement, commencing with the words, “in view,” obviously is a non sequitur. It is, in my judgment, this non sequitur which Judge Lindley embraces and upon which his opinion is predicated. No decision is made as to whether plaintiff was entitled to a trial by jury upon all issues of fact raised by the pleadings, including those relevant to the plea of the statute of limitations. It is not claimed that disputed issues of fact relevant to such plea were not raised by the pleadings, and it should be kept in mind that issues of fact are made by pleadings and not by testimony, whether it be oral or documentary.
If plaintiff was entitled to a jury trial as a result of his demand for such upon the factual issues made by the pleadings as they pertained to the statute of limitations, then it is immaterial what the district court heard or decided. In other words, it is immaterial whether his decision that no material issue of fact was involved, made upon the testimony which he heard, was correct or erroneous. The point is that the court had no right to hear and decide, providing, of course, that plaintiff was entitled to a jury trial. The fact that the record of the proceedings before the court is not here is of no consequence. On the issue presented, that record would be of no value.
To my mind, the question as to whether plaintiff was entitled to a jury trial on the issues under discussion poses an important and perhaps difficult problem. In view of the fact, however, that the case is to be disposed of by the majority upon another basis, no purpose could be served by an attempt on my part to decide the issue.