Harmon v. Hopkins

FINNEY, J.,

pro tem.

This is an appeal by plaintiffs from a judgment in favor of the defendant, rendered by the court sitting without a jury, in a trial held ¡after plaintiffs’ demand for a jury trial had been denied.

This appeal presents just one question, viz., did the court err in denying plaintiffs’ demand for a jury trial?

On March 21, 1929, the attorney for the plaintiffs wrote the clerk of San Diego County asking if it was necessary to make a deposit for jury fees at the time of filing the memorandum of motion to set this cause for trial and on March 25th received from the clerk a reply stating that $36 must be deposited as jury fees at least six days prior to the date of the trial. This was the rule in San Diego County prior to the amendment to section 631 of the Code of Civil Procedure, which went into effect in August, 1929. Under rule V, adopted by the Judicial Council, the Superior Court of San Diego County has a “Civil Active List” and a “Civil Trial List” of cases pending for trial, and by inadvertence this cause was set on the “Civil Trial List” on October 10, 1929, but no notice of this setting was ever served upon the plaintiffs or their attorney. By consent of plaintiffs the case went over and was again set on the “Civil Trial List”, for trial on November. 25, 1929, and notice of the setting was served upon plaintiffs’ attorney on November 5, 1929. It was inconvenient for plaintiffs’ attorney to try the case on November 25th, and an effort was made by defendant’s attorneys, for his accommodation,

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to have the ease removed from the “Civil Trial List” and reset at the first call of the calendar in December. This request for removal was refused by the presiding judge and the case continued on the “Civil Trial List” for trial until November 27th—two days after it should have been tried—• when it was again reset for trial on December 18, 1929, on which latter date it was tried and judgment rendered for the defendant by the court sitting without a jury, after plaintiffs’ demand for a jury trial had been denied, although a jury was present and available for the trial at that time.

On November 19, 1929, plaintiffs’ attorney wired to the county clerk of San Diego County, inquiring the amount necessary to be deposited as jury fees in this case, and on the same date received a reply that the jury fees were $24, but that it was too late to make the deposit. However, on the same date, November 19, 1929, the jury fees in the sum of $24 were deposited in this case by the plaintiffs and were received and accepted by the county clerk.