On Motion for Rehearing.
At a former day of this term, the judgment in this cause was affirmed, and appellant has, within due time, filed a motion for a rehearing. After careful consideration of this motion, we have reached the conclusion that we were in error in overruling appellant’s first assignment of error, which challenged the action of the trial court in declining to permit appellant to take a jury at the time the case was called for trial.
[6] In the original opinion, we said, substantially, that it appearing that appellant was in default in making his demand for a jury trial, it was incumbent upon him to show, affirmatively, that he did everything that he was required by law to do, before he could complain of the action of the trial' court in denying him a jury, and we stated in that connection that the bill of exceptions saved to the action of the trial court in that regard failed tó show, affirmatively, that appellant tendered a jury fee or made affidavit that he was unable to do so, etc., and we thought that in the absence of such showing by the bill of exceptions, reversible error was not shown. After further consideration of the matter, however, we have concluded that the showing made by the bill clearly negatives any presumption or conclusion that the trial court refused a jury because of any failure on the part of appellant to tender a jury fee or make affidavit of inability to do so. The bill shows, we think, on the contrary, that the only reason a jury was denied was because the trial judge had made it a rule in his court that *920he would not permit a jury in any case unless demanded on the very day that the statute required such demand to be made. The bill says, in so many words, that such was the reason for the refusal of the jury. If we look to the qualified or amended bill of exceptions that was procured after the court had adjourned, and brought to this court by certiorari, the situation is not changed. The amended bill, or qualified bill, itself shows that the jury was denied because not demanded on the day that it should have been demanded, and negatives any conclusion or presumption that the failure to tender a jury fee or make affidavit of inability to do so, actuated the court, although the qualified bill does state that the trial court would have granted a continuance, but would not relax the trial court’s rule. We think, if we should look to this qualified bill at all, that appellant was entitled to have his cause tried when it was reached on the docket for trial in its regular order, and that the court should not have laid, as a condition for allowing appellant a jury, a postponement of his cause to a subsequent term. The bill of exception shows, affirmatively, that at the very time the case was called for trial below, there was a regular jury in attendance and sitting in the courtroom, and taken together and as a whole, both the original bill of exception and the qualified bill show clearly, we think, that there was no reason for refusing appellant a jury in this case, since it must be conceded that the statute which required the demand in this case to be made on the second day of the term is not mandatory, but only directory.
We are persuaded largely, in granting this rehearing, by the holding of the Supreme Court in the case of Blair v. Paggi, decided by this court and found reported in 219 S. W. 287. The Supreme Court granted a writ of error in that case, and in doing so made a notation on its docket, substantially to the effect, as we are informed, that the trial court was in error in refusing to allow the appellant a jury in this case, and that this court erred in overruling the appellants’ assignment in this court on that point. If this court was in error in overruling the appellants’ assignment in the Blair-Paggi Case, relative to the trial court’s action in refusing a jury to those appellants, then we have no doubt that our former opinion in this ease on the same question was error. It is the opinion, however, of the humble members of this court, that the Supreme Court, if it adheres to what its docket notation would indicate in the Blair-Paggi Case, will have gone further than any other case in Texas in holding that the trial court abused its discretion in not allowing a jury. It is but reasonable, however, to suppose that the Supreme Court will so hold, in view of its notation above mentioned.
Entertaining these views, the- motion for rehearing is granted, and the judgment of the trial court reversed, and the cause remanded because of the error in denying appellant’s demand for a jury. But in all other respects we adhere to our views, as expressed in the original opinion, and have no doubt of the disposition made by us of all the other assignments of error.
Reversed and remanded.