Dissenting Opinion
Emmert, J.The “Uniform Indiana Food, Drug, and Cosmetic Act” §35-3101 et seq., Burns’ 1949 Replacement, clearly provides for a trial by jury.
“The right of change of venue from the county and the right of change of judge and the right of trial by jury shall exist as in civil cases.” Section 35-3126, Burns’ 1949 Replacement.
The certified copies of the court records attached to the petition disclose that a jury did try the issues, and did return a verdict for “the defendant, 11,000 cases, more or less, of canned tomatoes and 7,000 cases, more or less, of canned tomato juice . . .”
This verdict was returned March 13, 1953, and on April 8, 1953, the State of Indiana filed its motion for a new trial. Among other causes it charged that: “1. The verdict is not sustained by sufficient evidence. 2. The verdict of the jury is contrary to law.” It also charged that the court erred in certain rulings on evidence, in giving and refusing certain instructions, and that the court erred in refusing to grant the plaintiff’s motion for a directed verdict. As I read cause 6 of the *392motion for new trial, it did not waive the plaintiff’s right to a trial by jury, and in my opinion the respondent’s return, which on page 2 alleges: “The petitioner in its motion for new trial alleged that the court should have discharged the jury and entered verdict as in other cases triable by court,” misinterprets the record before us. Nor was there any waiver of the right to trial by jury by cause No. 7 of the motion for new trial.
The State of Indiana had a right to have the issues tried by a jury, to have a verdict returned, and it had a right to have a final judgment entered on that verdict after its motion for new trial was overruled. Section 35-3128, Burns’ 1949 Replacement, provides in part that, “The court or jury trying the cause shall determine whether the contents of each separate lot are adulterated or misbranded, and the judgment shall so specify . . .”
In State ex rel. Rose v. Hoffman, Judge (1949), 227 Ind. 256, 85 N. E. 2d 486, in an opinion by Gilkison, J., we held that in a criminal case when a defendant requests a trial by jury the judge had no discretion to exercise, but he must grant the motion, and we would mandate him to do so.1 The nature of the duty to grant the jury trial could not change at any stage during the progress of the trial. It still existed and it was mandatory upon the court even after the verdict was returned. The right to a trial by jury is one of the most sacred rights recognized by our form of government, and this is equally true whether the right be granted by the Constitution or by a statute. If we are going to permit *393courts to deny the right to a trial by jury against the clear provisions of the law, we thereby authorize the creation of a judicial tyranny. When a jury case has been submitted to a jury the judge has no jurisdiction, power or authority to deny that right, and there is no question of any waiver being involved on the part of the State in this proceeding. The Hancock Circuit Court did permit the case to be tried by a jury which returned its verdict, and it had no discretionary right or privilege to turn this jury trial into one by the court by ruling that the verdict was advisory only, and then making its own finding. Such action is void for want of power to so proceed in plain violation of the statute. The Hoffman case, supra, is clearly the law, and it should be followed by this court in this original action.
There is no merit in respondent’s contention that the State invited the error by moving for a directed verdict. This court in an exhaustive opinion in Michigan Cent. R. R. Co. v. Spindler, Admr. (1937), 211 Ind. 94, 107, 5 N. E. 2d 632, carefully reviewed the authorities on the effect of motions for a directed verdict by both parties and said, “But if the party whose motion is denied requests the court to proceed with the trial or submit the questions of fact to the jury, such motion or request should be granted and the court would commit reversible error to direct a verdict or discharge the jury over his objection.” There is no objection in the record shown by the certified copies here that the trial court or* the parties considered a jury trial had been waived. The parties submitted requests for instructions, the court indicated the instructions, arguments were heard, the jury instructed, and a verdict returned, all without any objection by any party that a jury trial had been waived.
On May 16th the court, after considering the verdict *394advisory only, made its own finding for the defendant, and then entered a judgment on its own finding. At the conclusion of the order book entry the court then overruled the State’s motion for a new trial. This motion would present nothing as to the decision of the court, for it was in part directed to the verdict of the jury. The fact that the State may appeal from a void judgment does not relieve this court of its statutory duty to enforce a mandatory duty by the trial court. State ex rel. Rose v. Hoffman, Judge (1949), 227 Ind. 256, 85 N. E. 2d 486, supra. There is no difference in law or in reason in the court’s duty to grant a jury trial, whether under the Constitution or under a plain statute.
It is quite obvious from an examination of the State’s complaint that there is nothing in its allegations setting out its cause of action, or in the prayer therein, that waived its rights to a trial by jury as provided by §35-3126, Burns’ 1949 Replacement. If we are going to hold this complaint waived the State’s right to a jury trial, every plaintiff will have to allege specifically in every civil or special statutory cause of action, where the right to a jury trial exists, that the plaintiff is not waiving a right to a trial by jury. This has never been the law.
Under the issues in this case a general verdict was required. The jury returned a general verdict. “When a trial by jury has been had, and a general verdict rendered, the judgment must be in conformity to the verdict.” Section 2-2501, Burns’ 1946 Replacement.
Where there is a clear legal duty on the court to enter a judgment on, and in conformity with, a verdict or a finding, a writ of mandamus is proper to compel the execution of this duty. State ex rel. v. Scott Circuit Court (1932), 203 Ind. 572, 576, 181 N. E. 523; *395Grant Coal Mining Co. v. Coleman (1932), 204 Ind. 122, 131, 179 N. E. 778; State ex rel. v. Beal (1916), 185 Ind. 192, 113 N. E. 225. See also State ex rel. Clark v. Rice (1943), 113 Ind. App. 238, 47 N. E. 2d 849; Pittman-Rice Coal Co. v. Hansen (1947), 117 Ind. App. 508, 72 N. E. 2d 364.
The fact that the verdict of the jury and the finding by the court are the same have nothing to do with the State’s rights in this case. If both parties had agreed to have the cause tried by the court without a jury, the State would have had the right to special findings of facts and conclusions of law. The loss of this right is certainly prejudicial to any litigant. Nor is it proper for us in this action to prejudge the possible assertions of error that may be made by the State when we force the State to appeal from this void judgment.
Section 35-3130, Burns’ 1949 Replacement, provides that “No subsequent proceeding in said cause, or new trial shall in any way involve any returned merchandise.” In view of this provision, and the fact that the act creates a special statutory cause of action, with no provision that the return of the goods shall be stayed pending an appeal by the State, we do not believe that the State is entitled to stay the return of the goods pending an appeal. We have no authority to judicially nullify this statute. The alternative writ should be amended by striking out that part of the order pertaining to the stay of proceedings, and the alternative writ, as amended, should have been made absolute.
Draper, J., concurs.
Note. — Reported in 112 N. E. 2d 855.
. In State v. Mead (1837), 4 Blackf. 309, this court held that the state, under the 1816 Constitution, was entitled to demand a trial by jury in a criminal case, that a trial by the court without a jury after proper demand for a trial by jury was void, and that “Whenever the right is claimed by either party, in a case like the one before us, the Court is bound to grant it.”