Leslie v. Roe

Opinion

ASHBY, J.

Plaintiffs (appellants) appeal from the denial of their motion for the continuance of trial in order to obtain funds for the payment of jury fees for the second and subsequent days of trial.

The facts are simple and undisputed.

1

Appellants brought an action for personal injuries. The defendants (respondents) demanded a jury trial and posted one day’s jury fees. Appellants indicated in their at-issue memo that they did not demand a jury. On January 10, 1973, the first day of trial, respondents informed appellants that they had decided to waive jury. Appellants requested a reasonable time to obtain the funds necessary to pay the anticipated jury fees.

2

[688]

The trial court denied the request for a continuance,

3

directed that the jury be released and the trial commenced. Appellants proceeded to trial and at the conclusion of the trial judgment was for defendants.

The issue before us is whether the trial court abused its discretion by denying appellants’ request for a continuance. We hold that it did.

Code of Civil Procedure section 631 provides that trial by jury may be waived by the parties in the manner specified in that section; provided further in subdivision 4 that “if a jury is demanded by either party in the memorandum to set cause for trial and such party thereafter by announcement or by operation of law waives a trial by jury, then in said event any and all adverse party or parties

shall be given

10 days’ written notice by the clerk of the court of such waiver, whereupon, notwithstanding any rule of the court to the contrary, such adverse party or parties shall have not exceeding five days immediately following the receipt of such notice of waiver, within which to file and serve a demand for a trial by jury and deposit advance jury fees for the first day’s trial whenever such deposit is required by rule of court, and if it is impossible for the clerk of the court to give such 10 days’ notice by reason of the trial date, or if for any cause said notice is not given, the trial of said action shall be continued by the court for a sufficient length of time to enable the giving of such notice by the clerk* of the court to such adverse party.” (Italics added.)