BRITT, Judge.
To clarify the record as to what was submitted to Judge Kirby for determination, the parties have filed a stipulation in this court stating that the judgment appealed from "is based on the plea in bar raised by the third defense in defendants' answer". Thus, it is now clear that jury trial was not waived by plaintiffs and that Judge Kirby did not make a determination of the cause on the merits.
That being true, we must determine procedurally...
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