Fry v. Harkey

On Motion for Rehearing.

In the original opinion rendered herein, we construed the recitations contained in the judgment of the trial court as constituting a waiver of a jury determination of such fact issues as might be in the case. We held that the case should be considered as a trial to the court without a jury.

The appellant upon rehearing contends that our construction of the judgment is incorrect and that the basis thereof was an instructed verdict to the jury. The trial court did go through the form of instructing a verdict for the appellee, but thé recitation that the parties agreed…