— The case of Goudy v. Timonds was a proceeding brought in the Wapello county district court under Secs. 3219 and 3220, whereby it was sought to have a guardian appointed for the defendant therein on the ground that he was of unsound mind. The petitioner herein is the defendant therein and his daughters are the plaintiffs therein. The petition was filed on January 8, 1914. An order appointing a temporary guardian was entered without notice. The case was brought for the March term of court, to begin March 23rd. On January 16th, the defendant therein filed a motion to sét *600aside the order of temporary guardianship. At the same time, he filed Ms petition in an equity suit brought by him against the plaintiffs in the guardianship proceedings, whereby he sought to enjoin the plaintiffs from prosecuting such guardianship proceedings. He also prayed for a temporary injunction. On January 17th, Judge Anderson, then holding the January term, entered an order fixing January 22nd as the time for hearing the application for temporary injunction. On January 19th, the parties by their attorneys appeared in open court and before Judge Hunter, who was then presiding for Judge Anderson, agreed to the following order, which was entered of record:
“Be it remembered that on this 19th day of January, A. D. 1914, by agreement this cause is to be tried to the court, Hon, F. M. Hunter, Judge, on a date to be hereafter named by him. Testimony of James Timonds to be taken before said Judge January 24, 1914, and the testimony so taken shall be used in the case James Timonds vs. Nora Goudy et al. ” ■
On January 24th, Judge Hunter was unable to be present. Thereupon, upon such date, the court continued “all matters pending herein” to the March term. In the early part of the March term, the attorneys for the defendant therein asked that another date be fixed for the taking of the testimony of Timonds. Thereupon, April 6th was fixed as “the time for taking the testimony of said James Timonds.” In pursuance of this order, the testimony was taken on such date. Under the order of the court, the jury for the March term was called for April 27th. On April 21st, the assignment of jury eases was made. At the time of such assignment, the defendant Timonds demanded a jury trial and asked that his case be assigned accordingly. This demand was resisted by the plaintiffs. The court did not definitely rule upon the question, but assigned the ease for trial for May 11th. On May 11th, the defendant again demanded a trial by jury. This demand was finally denied and the. defendant was required to proceed *601to trial before the court without a jury. After the hearing of the evidence and after an expression of opinion thereon by the trial judge, but before any judgment was entered therein, the defendant sued out the writ herein to test the legality of the action of the court and obtained a restraining order whereby the district court was restrained from entering judgment until this proceeding could be heard. Because of such restraining order, no judgment has been entered in such case.
Two questions are involved in the ease as made upon this record:
(1) Did the trial court err in denying the defendant jury trial?
(2) Is the remedy of certiorari available to such defendant to cure such error or illegality, if any?
Of the two questions stated, the second is the more difficult. Its consideration can only become necessary if we find in the affirmative on the first question and we proceed to this inquiry.
The ground of resistance to the defendant’s demand for a jury was two-fold:
(1) That by the agreement of January 19th, the defend- and had waived a jury.
(2) That the taking of the testimony of Timonds on April 6th was a beginning of the trial and that the demand for a jury therefore came too late.
i a on^appeai :°ld ifolSfwaiver of Juiy' Both of these grounds were ultimately sustained by the court and the refusal of a jury was based thereon. We have already set out the agreement entered of record January 19th. Some extraneous evidence has been included in the record in the form of affidavits which purport to aid such record either by adding to it or taking from it, but we think the record must speak for itself. The agreement referred to was made by attorneys. It is the policy of the law that such agreements shall not be left open for future cavil, and ordinarily the same *602must be reduced to a signed writing or entered upon the records of the court. Code, Sec. 319.
In construing this entry, perhaps it ought to be borne in mind that, so far as the main guardianship proceeding was concerned, it was not at issue. The answer was not due until the second day of the March term and no answer was on file. The same is true of the equity case. There was pending, however, a motion to discharge the temporary guardian in the one case and an application for a temporary injunction in the other. One or both of these had been previously set for hearing on January 22nd. Of course no right of jury trial was involved upon the hearing of either of such applications. The order contains no reference to a jury nor does it purport to contain a waiver of jury trial unless that is the necessary effect of the order as made. If the order had related to nothing but the method of trial, there would be more force in saying that its necessary effect was to waive a jury. But the order involved an agreement to try the case before Judge Hunter, who was not the regular judge holding that term. It authorized him to fix a date of trial. It also provided for the taking of the- testimony of Timonds on January 24th. It appears from the defendant’s return herein that the attorneys for Timonds in the guardianship proceeding were- anxious to reach an immediate trial because of the uncertain tenure of life of their client, he being then eighty-six or eighty-seven years old and in feeble health. This solicitude on their part is practically conceded. If, in the light of this fact, the record should be construed as an agreement for an immediate trial without a jury, yet the provision for an immediate trial failed. No hearing was had at the January term, although it continued to March 14th, nor was the testimony of Timonds then taken. At the March term, the main guardianship proceeding was put at issue and assigned for trial in the ordinary course. If this agreement, therefore, could be construed as a waiver of the jury for the purpose of an immediate trial at the January term, it affords no ground for holding such waiver appli*603cable to tbe succeeding term. We are clearly of tbe opinion, therefore, that there was nothing in the agreed order of January 19th which precluded either party from demanding a jury at the March term.
It remains to consider whether the trial of the ease was actually begun on April 6th as contended.' When Timonds appeared for the taking of his testimony on April 6th, the respective attorneys undertook to show of record the arrangement under which such testimony was to be taken. The record then made by the reporter was the following dialog:
Senator Webber: “It is agreed between both parties, all of the parties in the above cases to wit: the case of James Timonds vs. Nora Goudy et al., and Watson Enyart, Guardian, and the case of Nora Goudy et al., plaintiff, vs. James Timonds, defendant, that the testimony or evidence given by James Timonds, the plaintiff in the first case and'the defendant in the second, that the evidence shall be heard as his deposition in both cases to be tried in the future.
Judge Tisdale: ‘1 Strike that out, I can beat it. Now it is agreed in these eases that the testimony of James Timonds taken today may be used on the trial of the above — of both of these proceedings, to wit: Nora Goudy et al., vs. James Timonds, and James Timonds vs. Nora Goudy et al., Watson Enyart, Guardian, and this is the beginning of the trial of the two cases heretofore consolidated by order of the court and a jury waived in the probate ease.
Senator Webber: “I do not believe our preference would be in having the testimony of James Timonds at this time be taken, it is more in the nature of a deposition, agreed to by both parties.
Judge Tisdale: “This is the beginning of the actual trial of the cases.
Chester Whitmore: “Are you making him your witness?
Judge Tisdale: “No, sir. This is not a preliminary matter, this is the beginning of the trial of these cases, we were *604to take bis testimony to accommodate yon, it is not in the nature of a deposition, but testimony in open court in the trial of the two cases; if Your Honor will turn to the docket you will find — ■
Senator Webber: “We want to take his deposition.
Judge Tisdale: ‘ ‘ There is no agreement to take his deposition, they wanted me to go out and I declined and they got it set down here before the court. They wanted me to go out to take his testimony, but I declined.
Chester Whitmore: “Well, go ahead, make him our witness in the two cases, let us proceed.’’
It will be noted that Judge Tisdale was representing the plaintiffs and Senator Webber and Mr. Whitmore were representing the defendant. Judge Roberts, who represented the defendant on January 19th, was not present on this date. It will be noted from the foregoing dialog that it ended where it began and settled nothing. The controversy at this point simply involved a construction of the agreement of January 19th. The date of January 24th having failed because of the inability of the judge to be present, he fixed the later date of April 6th. The agreement of January 19th speaks for itself. Its provision was that the date of trial was to be “hereafter named” by the judge. But the “testimony of James Timonds” was “to be taken January 24th, 1914.” Manifestly, the agreement of January 19th did not contemplate that the taking of the testimony of James Timonds should be the beginning of the trial. So far, therefore, as the colloquy between the respective counsel above set forth is concerned, the attorneys for the defendant were clearly right in their construction of the order under which the testimony of Timonds was to be taken. And this conclusion is consistent with the record of the court as actually made on succeeding dates. The record entries show that on April 21st, the ease was assigned for May 11th; that on May 11th, the trial was begun. There is no record entry which purports to say that the trial *605was begun on April 6th. To hold, therefore, that the trial began on April 6th because of the taking of the testimony of Timonds is to contradict the only record entry on the subject, • — that the trial began on May 11th. It should be noted here that the equity case was dismissed on April 21st.
We do not overlook the fact that, on May 12th, the trial court expressed the view that the trial began with the taking of the testimony of Timonds on April 6th and thus substantiated the contention of the plaintiffs, and that the opinion so expressed was taken down by the shorthand reporter and is incorporated as a part of the return.
This ruling, however, only purported to be a construction of the court’s previous records and not a correction of any record. When the ruling was made on May 12th, the record had already been made that the trial began on May 11th. This was consistent with the court’s record for April 6th, there being no trial record entered for this date in such case.
On the general question of waiver of jury, we have the following statutory provision (Code, Sec. 3733) :
“Trial by jury may be waived by the several parties to an issue of fact in the following cases:
“1. By suffering default or 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.”
We have held that a jury may be waived also by going to trial without objection and without demand for a jury. Saum v. Jones County, 1 G. Gr. 165; Davidson v. Wright, 46 Iowa 383. It is in accord with the weight of authority that even an express waiver of a jury at one trial of a case is not necessarily operative as a waiver of a jury on a subsequent trial. Cochran v. Stewart, 68 N. W. (Minn.) *606972. And this is especially true where the first waiver was by implication only. Schumacher v. Crane, 92 N. W. (Neb.) 609. Even a stipulation of the parties is to be strictly construed in favor of the right to a jury and a waiver is not to be lightly inferred by implication. Wittenberg v. Onsgard, 81 N. W. (Minn.) 14. We have held that what might have been a sufficient waiver by implication at one term cannot be regarded as such at a subsequent term. Smith v. Redmond, 141 Iowa 105.
toT^waivCTunconstruction' of record. Turning to the record herein, if the record entry for January 19th disclosed a waiver of the jury in the trial of the main case, it was such by implication only. True, if the parties had come to trial without demanding a jury, a waiver would be implied. But they did not. No provision of Sec. 3733 was complied with. If the record entry could be aided by a showing of the exigencies of the time and the desire of the parties for an immediate trial, this would furnish no fair reason for extending the implication of a waiver to the subsequent term.
It is clear, also, that the order of January 19th did not contemplate that the date of taking the testimony of Timonds should be deemed as the date of the beginning of the trial. An express date was fixed for the taking of such testimony, while the date of the beginning of the trial was expressly left open, to be determined later.
The conclusion is unavoidable, therefore, that the defendant was entitled to demand a jury at the succeeding term; that his demand therefor on April 21st, when the assignment for the term was being made and when this case was assigned for May 11th, was timely. This demand being repeated and insisted upon when this case was reached for trial on May 11th, the refusal of the demand was not warranted under the statute.
*6073. Cebtioeaki; when action will lie: refusing jury in guardianship proceeding: inadequacy of appeal. *606II. This brings us to the necessary consideration of the more difficult question whether the error of the court was an *607illegality for which no other plain, speedy and adequate remedy is provided within the meaning of See. 4154. ¥e have held repeatedly that where there is no excess of jurisdiction and where the illegality is merely an erroneous conclusion for which an adequate remedy is pro-
vided by appeal, a writ of certiorari will not lie. The line of demarcation between a merely erroneous conclusion and an illegality for which no other adequate remedy is provided cannot be very exactly defined. In Butterfield v. Treichler, 113 Iowa 328, a jury trial was erroneously permitted (as was held later in Porter v. Butterfield, 116 Iowa 725). We held, however, that the remedy by appeal was adequate and that the writ of certiorari would not lie to correct such error. It is urged with force that such holding is decisive of the present question; that is to say, if the writ will not lie to correct an order erroneously granting a jury trial, it cannot lie do correct the converse order erroneously refusing a jury trial. It is urged that in either event a merely erroneous conclusion was involved and no more. It is generally true that illegality or excess of jurisdiction, if any, is necessarily preceded by an erroneous conclusion. If the erroneous conclusion results in an illegality within the meaning of Sec. 4154, then there is an illegality and not merely an erroneous conclusion. The right to a jury trial in this case was an explicit statutory right. The defendant was deprived of it as effectively as if the refusal had been arbitrary. In State v. Carman, 63 Iowa 130, it was held that the district court had no jurisdiction to try a criminal case without a jury. In that case, the defendant had expressly waived a jury. This court held, however, that there was. no statutory provision authorizing the defendant to waive a jury and that such waiver was, therefore, ineffective. The reasoning in that case is not necessarily applicable to a civil ease, but it comes close to the general question whether the trial judge has power to try a jury case without a jury in the face of a demand for a jury. It *608is clear that be has no statutory authority to do so. It is also clear that the statute gives to either litigant the express right to a jury trial. The necessary 'effect of this provision is to withhold from the trial judge the power or authority to try the issues of fact in the case except by the consent of the litigants, either express or implied. In a broad sense, the court had jurisdiction both of the parties and the subject-matter. This jurisdiction was not defeated by mere errors. In a sense, also, the trial judge is the court. He is its head and its hand. In a jury case, however, the jury is also a part of the court. Its function is well defined. Its power to determine issues of fact upon conflicting evidence is the power of the court to that end. That power can be exercised by the trial judge in a jury ease only by the consent of the parties, either express or implied. To refuse a proper demand for a jury and to exercise the jury power over the objection of the demanding litigant is an exercise of power by the trial judge beyond the provision and contemplation of the statute. If this was not an illegality within the meaning of Sec. 4154, then it would be difficult to apply the term to anything less than a defeat of jurisdiction. We reach the conclusion that the action complained of was such illegality.
III.. For this illegality, had the defendant any other plain, speedy and adequate remedy? The only other remedy available to the defendant would have been by appeal. In order to render such remedy available at all, he must first submit, to adverse judgment. The effect of such judgment would be to fix his status as a person of unsound mind. Theoretically, this proceeding is not adverse. It is prosecuted for the supposed benefit of the defendant himself. No one other than the defendant has a legal interest in the result. And yet the correctness of the result is of the highest importance to the defendant. A judgment making the guardianship permanent puts him under disability as a non compos mentis. It not only deprives him of the present control of'his property but it renders him presumptively incapable, and perhaps conclusively *609so, of entering into any contract or making any testamentary disposal of his property. The defendant is eighty-seven or eighty-eight years old. His health is impaired and his expectancy of life is very brief.- An adverse judgment would fix his status, for the time being. He could not supersede it pending the appeal. If he should die before his appeal could be heard and determined, it is doubtful at least whether his appeal would not be abated thereby. The result would be to leave his status as fixed by the judgment at the time of his death.
On this branch of the ease, the court is divided in opinion. As indicated in the dissent filed herewith, the minority think that the writ of certiorari is not available to the plaintiff. The majority reach a contrary conclusion. We recognize the fact that the ground is narrow, but we are convinced that it comes within the call of the statute. The illegality is unmistakable. The remedy by appeal is not available to him for want of judgment and cannot be available to him until after judgment.
As rehearsing the ground of our holding, therefore, we are disposed to emphasize the following recapitulation:
(1) The right of the defendant to a jury upon his demand, was explicit and unmistakable. It was not dependent upon the finding of any disputable fact. The judge lacked statutory power to try the ease without a jury without the consent of the defendant, either express or implied. There was' no consent. There was insistent demand for the jury. The refusal of a jury in the presence of this demand was the equivalent of an arbitrary refusal, though not intended as such. It was not a legal exercise of the judicial power to hold that a demanding litigant was consenting contrary to his demand.
(2) The remedy by appeal cannot become available to the defendant unless he first submits to an adverse judgment and thereby loses his status as a compos mentis. This loss of status is an important consideration as bearing upon the ques*610tion of whether the remedy by appeal is adequate. It cannot be superseded by bond or otherwise. It will operate to his immediate disability. This will not only deprive him of the dominion of his property but it will render him helpless to make any disposal of the same either testamentary or otherwise. It is at least doubtful whether the proceedings could be reviewed at all if his death should occur before such review were had.
(3) There is no party in interest in the guardianship proceedings except the defendant. They are both prosecuted and defended for his benefit alone. No other party has any interest adverse to him. No one can be wronged by the granting of plenary remedy to him.
In brief, therefore, we think that the defendant is entitled to maintain his status as presumptively compos mentis until the jury which he has demanded shall find otherwise.
That the peculiar circumstances of the particular case may be considered as bearing upon the question of the adequacy of the remedy by appeal was held in Voting Machine v. Hobson, 132 Iowa 38.
We think it must be said, therefore, that an appeal would furnish the defendant no remedy against the immediate disability to which adverse judgment must subject him. It is therefore not adequate. The writ issued herein must be sustained and the order complained of annulled. — Annulled.
Ladd, Preston, and Gaynor, JJ., concurring; Deemer, C. J., and Salinger, J., dissenting; Weaver, J., not sitting.