#### David T. Phillips v. John D. Hood.

1. Discontinuance—waiver by appea/i'ance and trial without objection. If a suit in the county court is discontinued by being off the docket for several terms, yet if, on appeal from the judgment of the county court to the circuit court, the parties appear and go to trial without objection, the discontinuance, if any, will be waived.

*4512. Trial by jury—waiver. Where the record shows the trial by the court, and no order waiving a jury, and that the parties were present, and it does not appear that any objection was interposed, there will be no error. It will be a waiver of the right to have a jury tidal.

Appeal from the Circuit Court of Jefferson county; the Hon. Tazewell B. Tahher, Judge, presiding.

Mr. Thomas S. Casey, for the appellant.

Messrs. Pollock & Keller, for the appellee.

Mr. Justice Sheldoh

delivered the opinion of the Court:

The plaintiff in this suit recovered a judgment in the county court of Jefferson county, from which an appeal was taken by the defendant to the circuit court of the county, where the judgment was affirmed, and the defendant took the present appeal to this court.

It is objected that the cause was off the docket of the county court from the January term, 1874, to the June term, 1875, whereby the suit was discontinued. Without stopping to examine whether such be the fact,—were it so, the subsequent appearance of both parties in the suit in the circuit court on appeal, without making the objection, was a waiver thereof. Randolph Co. v. Ralls, 18 Ill. 29; Birks v. Houston, 63 id. 77.

It is next objected that, in the county court, the cause was tried by the judge of that court without a jury, and that the record does not show that appellant waived-his right to a jury, as it should have done, there being an issue of fact, according to Archer v. Spillman, 1 Scam. 553. The record shows the appearance of both the parties at the time, and in Burgwin v. Babcock, 11 Ill. 28, it was held, that in the case of such a trial, where the parties are present, and interpose no objections, they waive their right to have the cause submitted to a jury, and acquiesce in the trial by the court.

It is further insisted that the verdict is not sustained by the evidence. There is some conflict in the testimony, but we regard it as fully warranting the verdict.

The judgment will be affirmed.

Judgment affirmed.