I. S. Chapman & Co. v. Cramer

JENNINGS, J.

On October 30, 1928, respondent served upon counsel representing appellants a memorandum, requesting the clerk to place the above-entitled action on the civil active list. On November 2, 1928, counsel for appellants filed a written demand for a trial by jury, in said action and deposited with the court the sum of #40 for jury fees. On January 16, 1929, and March 16, 1929, memoranda similar in all respects to that which was served on October 30, 1928, were served upon counsel for appellants, and were duly filed. In each of the memoranda thus served appeared

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'a notation that a jury trial was demanded by appellants. On January 13, 1930, a fourth memorandum requesting that the action be placed on the civil active list was served by mail upon counsel for appellants. This memorandum stated that a trial by jury was not demanded. Bach memorandum contained a notice that cases would be set for trial in the department of the presiding judge on the first and third Mondays of each month at 9:30 A. M. Pursuant to the fourth memorandum for placing the case on the civil active list, it was set for trial on February 26, 1930. . On said last-mentioned date counsel for appellants moved the court for a continuance of the trial of the action which was granted and the trial was continued to the 5th of March, 1930. At the time said motion for continuance was heard no jury was in attendance and it was not called to the court’s attention that a jury had been demanded or that a jury would be desired by appellants. On March 5, 1930, the action was tried by the court without a jury, no request being made that»a jury be impaneled and no objection being made that a jury was not in attendance. From a judgment in respondent’s favor rendered after a trial in which appellants participated, this appeal is prosecuted on the sole ground that appellants were unlawfully denied a trial by jury.

It is the contention of appellants that there was, in effect, a denial of their right to a trial by jury, due demand having been made by them for a jury in an action at law wherein a jury may be demanded and that such denial constitutes reversible error. It is, however, established that the right to trial by a jury may be waived in such a case.

(Amos

v.