"In the absence of a cross-appeal by either [party] . . . the Court noted that it 'left in place' that portion of the trial judgment not subject of the appeal."
How later courts described this case
- "In the absence of a cross-appeal by either [party] . . . the Court noted that it 'left in place' that portion of the trial judgment not subject of the appeal."
- where new trial granted, "case stands as if there had never been a trial" (quoting Kimble v. Degenring, 116 N.J.L. 602, 603, 186 A. 451 (Sup.Ct.1936))
- "we have held that a party, in order to attack the actions . . . which were adverse to him, must pursue a cross- appeal"
- "[A respondent], in order to attack the actions below which were adverse to him, must pursue a cross-appeal."
Written by the judges who cited it.
The opinion
Hehek, J.
(concurring in reversal). The constitutional right of trial by jury may be waived; and so also a contractual stipulation to submit an issue of fact to the court without a jury may be waived by the parties.
The right of trial by jury is favored in the law, “as a fundamental guaranty of the rights and liberties of the people”; and waivers of the right are strictly construed. Parsons v. Bedford, Breedlove & Robeson, 3 Pet. 433 , 7 L. Ed. 732 (1830); Slocum v. New York Life Ins. Co., 228 U. S. 364 , 33 S. Ct. 523 , 57 L. Ed. 879 (1912). The waiver asserted here depends upon the intention of the parties; and, “as the right of jury trial is fundamental, courts indulge every reasonable presumption against waiver.” Aetna Insurance Co. v. Kennedy, 301 U. S. 389 , 57 S. Ct. 809 , 81 L. Ed. 1177 (1936).
The defenses here are that the defendants severally endorsed the notes in suit in consideration of plaintiff’s promise to extend a new and additional line of credit to the maker of the notes and thus to enable him to finance a continuance of his automobile sales business, and that the contrary stipulation of forbearance merely was typed on the notes, unknown to the endorsers, after their signatures had been affixed, and thus to signify a substantially different agreement between the parties, and the endorsements are void for “failure and *496 absence of consideration” and a material alteration of the instruments.
It would seem that the printed waiver of trial by jury was not intended to apply in these circumstances. And this was the parties’ own understanding of the contractual relation. The plaintiff proceeded to a trial by jury without invoking the contractual right now asserted and, then, for the first time, after the jury’s adverse verdict and the order for a new trial, demanded trial without a jury.
It was then too late for a radically different view of the contract in this regard. The parties had elected to proceed to trial by jury, and the election should, for obvious reasons of policy, be deemed conclusive. Such is the principle of Lerner v. McDermott, 11 N. J. Misc. 99 (Sup. Ct. 1933); Friedman v. Steinhauser, 13 N. J. Misc. 601 (Sup. Ct. 1935).
I would reverse the judgment and, in the particular circumstances, I join with the majority in directing a new trial, save that it shall be a trial by jury.
Heher, J., concurring in result.
For reversal and remandmenl—Justices Heher, Burling, Erancis and Proctor—4.
For affirmance—Justice Wacheneeld—1.