Cowlin v. Pringle

WHITE, J.

Plaintiff appeals from a judgment in favor of defendant, William A. Pringle, in an action to recover damages for personal injuries arising out of an automobile accident in which such injuries are alleged to have occurred as a result of the concurrent negligence of respondent herein and various other defendants named in the complaint. After issue had been joined through the filing of answers by all defendants the plaintiff, appellant herein, caused the case to be set for trial by filing with the court a written memorandum for setting for trial. In this written memorandum, which is supplied by the court clerk, there appears the interrogatory, “Is jury demanded?”; and which query plaintiff answered in the affirmative by inserting thereafter the word “Yes”. Pursuant to said memorandum the ease was on March 9, 1939, set for “pre-trial”, a procedure preliminary to trial on the merits then in vogue in the Superior Court of Los Angeles County. . The pre-trial date was fixed for March 24, 1939. On the last named date, when all parties were represented by their counsel, the court, with plaintiff’s jury demand on file and before it, set the case for trial on its merits on June 12, 1939. On June 2nd, ten days before the date set for trial, the attorney for one of the defendants, R. Leslie Sparks, deposited with the clerk of the Superior court the sum of $24 as the first day’s jury fees. Plaintiff had not theretofore paid any jury fees.

With plaintiff’s demand for a jury still on file and the jury fees deposited as aforesaid the ease, after several continuances, was finally called for trial on October 4, 1939, with all parties personally present and represented by their respective counsel. A jury was duly and regularly empaneled and sworn to try the cause. Plaintiff proceeded with the introduction of her evidence and the cause was adjourned at the close of the first court day to the following morning,

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when the defendant R. Leslie Sparks paid the required jury-fees for the second day of trial. During the afternoon of the second day plaintiff rested her ease. Thereupon all of the answering defendants, including respondent herein, made respective motions for nonsuit. All of such motions were granted except that of the respondent, whose motion was denied. During a recess which followed the rulings on the motions for nonsuit the court advised counsel for plaintiff and the remaining defendant that unless the jury fees for the following day were paid the case could not proceed as a jury trial. Counsel for plaintiff thereupon requested that the matter continue as a jury trial and deposited the jury fees for the following day and at the same time offered to pay all other fees that might thereafter be required. At this time counsel for respondent advised the court and counsel for appellant that the defendant had not demanded a jury trial, did not desire to try the case before a jury, and would not pay any portion of any jury fee, and further, that in the opinion of counsel it was extremely doubtful as to plaintiff’s right to proceed with the trial of said cause before a jury.