stating that Rule 216 "is discretionary rather than mandatory[,] and that when the Rule has not been complied with, a trial court's decision to grant or deny a jury trial will not be reversed on appeal except on a showing of abuse of discretion"
How later courts described this case
- stating that Rule 216 "is discretionary rather than mandatory[,] and that when the Rule has not been complied with, a trial court's decision to grant or deny a jury trial will not be reversed on appeal except on a showing of abuse of discretion"
Written by the judges who cited it.
The opinion
On Rehearing.
In order for appellants to show that they were entitled to a jury trial notwithstanding their failure to pay the jury fee on time, it was necessary for them to negative both the conditions which might defeat their request. In other words, appellants had the burden of establishing that to allow them a jury trial (1) would not operate to injure the adverse party, and (2) would not disrupt the court’s docket. On the other hand, to defeat appellants’ demand for a jury trial under the circumstances, appellee needed only to establish one — either one — of the conditions. That is to say, appellee had only to show that to allow appellants a jury trial would operate to injure appellee or would disrupt the court’s docket. The record here shows that both conditions were negatived. Therefore appellants were entitled to a jury trial.
As we stated in our opinion appellants, not appellee, asked for a jury. However appellee objects to our statement that both attorneys appeared in court and asked for a setting of the case, informing the court that it was a jury case. Our statement was based on a part of the record as follows:
From appellants’ motion for a jury trial: “That in January of 1956, the plaintiff and the defendants, by their attorneys, appeared before this Court for a setting of this case as close to a number one setting as possible in order that the case could be tried. At the time that they appeared before the Court,, they also requested a setting in another case which was set at the same time this case was set. At that time, both attorneys informed the Court that these cases were to■ be tried by juries, and it would take about a day and a half to try the cases, and that they wanted these cases to be set on a Monday so that they would be able to get all their witnesses, and get to trial without any question. * * * That both attorneys for both sides have anticipated and made clients available at a particular time for this hearing, based upon the fact that it was to be tried before a jury, and that having to> proceed for trial before the Court makes it impossible to secure the witnesses * * (Emphasis ours.)
From statement of appellee’s counsel: “As to the dates set forth in the motion of the defendants, the dates and facts related therein by attorney for defendant are substantially true and correct to the best of my knowledge and belief.”
Appellee’s motion for rehearing is overruled.