REPORTS OF CASES DETERMINED IN THE SUPREME COURT OF THE TERRITORY OF UTAH. WILLIAM PEREGO, APPELLANT, v. WILLIAM H. JURY TRIAL.-QUIETING TITLE.-WAIVER.-Semble that where a party does not claim a trial by a jury, but goes to trial before the court, in an action to quiet title where only legal titles are involved in a suit to establish the right of possession to mining ground, and makes no objection on the ground that a jury trial was not had until the case has reached the appellate court, it will be presumed that a trial by jury was waived. APPEAL.-RECORD.-NEW TRIAL.-NO BILL OF EXCEPTIONS.-Where a motion for new trial was made upon the minutes of the court, and an affidavit filed along with the notice of motion for new trial; and the said minutes of the court, and notice of intention, and affidavit upon motion were not embodied in any bill of exceptions, or statement of the case, held that neither the minutes, notice, nor affidavit were properly in the record or before the court for review. PLEADING.-QUIETING TITLE.-RELIEF UPON ANSWER.-When the answer alleged grounds for affirmative relief to defendants in a suit to quiet title to mining ground, but no counter-claim or cross-complaint was filed, a judgment for affirmative relief to defendants establishing and quieting their title to the premises was not erroneous. APPEAL from a judgment and from an order refusing a new trial of the district court of the third district. Hon. Charles S. Zane, judge. The opinion states the facts, except the following: The sections of the Code of Civil Procedure which are applicable are as follows: Sec. 3227, 2 Comp. Laws, 1888. The counter-claim must be one in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: 1. A cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. Section 3231, Id., as follows: Whenever the defendant seeks affirmative relief against any party relating to or depending upon the contract or transaction upon which. the action is brought, or affecting the property to which the action relates, he may in addition to his answer, file at the same time, or by permission of the court, subsequently, a cross-complaint. The cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to an original complaint. Mr. Gerald G. P. Jackson and Mr. J. Y. Marshall, for the appellant. Messrs. Bennett, Marshall and Bradley, Mr. Arthur Brown and Mr. William H. Dickson, for the respondents. MINER, J. This action to quiet title is brought upon. an adverse claim filed by the plaintiff against the defendants, who had applied for a United States patent to mineral lands in Summit county, Utah, to which the plaintiff claims to have his possession and right of possession. The defendants deny the material allegations in the complaint, and claim to have the possession, ownership, and right of possession, thereto, and pray that defendants be adjudged to be the owners thereof, and entitled to the possession of the same, and for all general and proper relief, etc. It appears from the abstract, as it is presented, that this cause came on for trial on May 6, 1891, before the court without a jury. The attorneys of the respective parties were present, and conducted the trial, which lasted several days. At the close of the trial, arguments of the respective counsel were made, and the case was finally submitted to the court without a jury, for its determination. The attorneys of both parties were present during the entire proceeding, and it does not appear that any demand for a jury trial was made, or that any objection or exception was made, at any time during the trial, against the right of the court to try the case without a jury. This objec tion is raised for the first time in this court. After the case was submitted, the court entered a decree in favor of the defendants, and against the plaintiff, quieting and confirming the title of the defendants to the land and claims in controversy, and adjudging the defendants to be the owners thereof, and entitled to the possession of the same. The plaintiff served his notice to set aside the findings, decision, and decree, and for a new trial, because of irregularity in the proceedings of the court by which plaintiff was prevented from having a jury trial, and because the court tried said cause without plaintiff having waived his right to a trial by jury. The motion was based upon the minutes of the court, and upon an affidavit filed, wherein affiant states that plaintiff did not, orally or in writing, |