Union Oil Co. of California v. Hane

McCOMB, J.

From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover damages for the conversion of personal property defendant appeals.

The essential facts are:

November 19, 1936, plaintiff filed an action to recover damages from defendant for the alleged conversion of a large quantity of gasoline. November 30, 1936, defendant filed an answer to the complaint and on February 10, 1937, plaintiff filed with the clerk of the superior court a setting card. May 11, 1937, plaintiff served notice on defendant that the

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above-entitled ease had been set on the pre-trial calendar for hearing May 27, 1937. May 26, 1937, a demand for a jury trial was filed by the defendant and the sum of $24 as jury fees was deposited with the clerk of the superior court. May 27, 1937, when the case was called for hearing on the pre-trial calendar, defendant’s attorney stated to the judge that a written demand for a jury trial had been filed with the clerk of the superior court on the preceding day (May 26, 1937), that plaintiff’s attorney contended that the demand for a jury trial had been filed too late, and by reason thereof defendant had waived the right to a trial by jury. Defendant then requested a ruling from the judge on this point.

In response to this request the judge ruled that a trial by jury had been waived by failure of defendant to present his demand for a jury trial within the statutory period.

Thereafter the judge set the case for trial on June 22, 1937.

Defendant relies for reversal of the judgment on this proposition:

A party does not waive the right to a trial by jury by failing to demand the same within five days after receiving notice that a case has been set for hearing on the pre-trial calendar of the superior court of Los Angeles County.

This proposition is tenable. Article I, section 7, of the Constitution of the state of California reads in part as follows:

“The right of trial by jury shall be secured to all, and remain inviolate; ... A trial by jury may be waived . . . in civil actions by the consent of the parties signified in such manner as may be prescribed by law. ’ ’