Bennett v. Hillman

WORKS, J.,

pro tem.

The plaintiffs are attorneys at law and the action was brought to recover from defendant the value of services rendered to him by them and to recover cash advances made by them in connection with the services. The plaintiffs had judgment for nearly twenty-one thousand dollars and the defendant appeals.

The first contention of the appellant is that he was improperly denied the right of trial by jury in the action. The question presented largely concerns the provisions of subdivision 4 of section 631 of the Code of Civil Procedure. That

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subdivision was added to the section by the legislature through an act passed May 20th and which took effect August 8th, both in 1915. So much of the section as is material to the present controversy, including subdivision 4, is as follows: “Trial by jury may be waived by the several parties to an issue of fact ... in manner

following: 4c.

By failing to announce that a jury is required, at the time the cause is first set upon the trial calendar if it be set upon notice or Stipulation, or within five days after notice of setting if it be set without notice or stipulation.”

On a day between December 22d and December 27th, both in 1915, the parties entered into a written stipulation that the action might, on the latter day, be set for trial. On that day it was by the court set for May 4, 1916, in a department of the court in which jury trials are not held ordinarily, and also on that day, December 27th, notice that the cause had been set down for May 4th in the department mentioned was served on the counsel for the appellant. At the time the cause was set for trial the appellant did not announce that he desired a jury trial thereof. Under notice dated April 28, 1916, the appellant notified the respondents that on May 1, 1916, he would move the court “for an order setting aside the assignment” of the action “to the court and without a jury and setting said action upon the trial calendar to a jury or transferring said action to a department of the court where a trial by jury may be had.” The notice was accompanied by affidavits of the appellant and of the attorney who was then his sole counsel, to the effect that the appellant had always desired and intended that the action should be tried by a jury; that at about the time the answer was filed, which was before December 22, 1915, the appellant instructed his counsel to demand a' jury trial; that thereupon his counsel informed him that under the law a jury could be demanded at any time before the commencement of the trial, that a jury trial could be had upon such demand, and that he, the counsel, would make the demand in proper time; that the appellant knew nothing about the law in the premises except as it was so imparted to him by his counsel; that the counsel did not know until April 27, 1916, that subdivision 4 had been added to section 631 of the Code of Civil Procedure; that he first informed the appellant of that change in the law on that