Lick v. Munro , 8 Idaho 510 ( 1902 )

STOCKSLAGER, J.,

Concurring. — I agree with my associates that this ease should be reversed on the record before us, but I cannot concur in the order that judgment shall be entered for appellant. Under the provisions of the constitution of this ■state all parties litigant are entitled to a trial by a jury wherein questions of fact arise. There can be no question but that the issues involved in this ease could be submitted to a jury, and on the demand of either party it would be the duty of the trial court to do so. It is true that a trial by a jury was expressly waived; but when this court reverses the judgment, and remands the case to the lower court for further proceedings in harmony with the opinion, it is then for the district court to dispose of the case. It is not for this court to say how many trials shall or shall not be had in the court below. In my view of the case, this court has no authority to order judgment entered in the court below in cases of this character.