Allan & Leuthold, Inc. v. TERRA INVESTMENT COMPANY

The majority holds that plaintiff’s failure to request that its legal claim be transferred to the law side of the court, after an opportunity to evaluate its proof, is a waiver of its constitutional right to both a jury trial and to avoid de novo review. Oregon Constitution, Art VII, § 3 (Amended). The result has the superficial glamour of being symmetrical to Olson v. Roop, 255 Or 368, 467 P2d 437 (1970), but does violence to the record in this case and adds confusion to the law-equity distinction.

With respect to. the record, I find that plaintiff did about all that civility will permit in…