Summary
In Jaynes v. Marrow, 144 Colo. 138, 355 P.2d 529 (1960), we held that C.R.C.P. 39(b) grants extensive discretion to trial courts in determining whether a jury should be used. Three justices concluded that the trial court correctly ruled under C.R.C.P. 39(b), "and in so doing the court may exercise its discretion without interference from this court", although "`judicial discretion must have some rational basis. It is not synonymous with judicial whim or caprice.'"
Summary of this case from McConnell v. District CourtOpinion
No. 18,915.
Decided September 19, 1960. Rehearing denied October 10, 1960.
Action for attorney's fees. From a judgment for defendant following trial to a jury, the plaintiff brings error.
Affirmed.
1. TRIAL — Jury Trial — Rules — Waiver. Upon compliance with Rule 38, R.C.P. Colo., a party to an action may have a jury trial as a matter of right, but failure to act in accordance with the rule waives such right regardless of the reasons given in excuse or for neglect.
2. Rules — Jury Trial — Discretion of Court. Rule 39, R.C.P. Colo., permits the court in its discretion to order a jury trial of any or all issues, and in so doing may exercise its discretion without interference from the Supreme Court.
3. Jury — Trial — Discretion of Court. Under Rule 39, R.C.P. Colo., trial court, either with a belated motion before it, or in the absence of motion, may order a jury trial, it being within its discretion to do so.
Error to the District Court of the City and County of Denver, Hon. H. Joe Rawlinson, Jr., Judge.
Mr. DAVID ALLEN, for plaintiff in error.
Messrs. SHELDON NORDMARK, Mr. PAUL C. BROWN, Mr. RICHARD McLEAN, for defendant in error.
THE case in the trial court was one to recover attorney fees. The matter was tried to a jury over the objections of the plaintiff and the sole question before this court on review is whether it was error for the trial court to grant a jury trial under the facts hereinafter recited.
The parties appeared in the trial court in the same order they appear in this court, and we will refer to them by name.
When the original complaint and answer were filed neither party made demand for a jury trial in accordance with Rule 38, R.C.P. Colo. More than a year later, and shortly before the trial of the action, the defendant filed a written demand for jury trial, to which plaintiff filed written objections, which upon hearing were overruled, the court stating in pertinent part:
"The Court overrules the objection of the plaintiff to the calling of a jury for the trial of this case for the reason that the same would not prejudice the plaintiff. Ample time has been given to the plaintiff for such jury trial.
"* * *
"The Court notes the objection of plaintiff to this ruling."
Thereafter the matter proceeded to trial before a jury, which returned a verdict in favor of the defendant. Judgment was entered on the verdict and motion for new trial was dispensed with.
Rule 38 (b) states:
"(b) Demand. Any party may demand a trial by jury of any issue triable by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party."
And Rule 38 (d) states:
"(d) Waiver. The failure of a party to serve a demand as required by this rule and to file it as required by rule 5 (d) constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties."
Rule 39 (b) states in pertinent part:
"* * * notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made, the court in its discretion may order a trial by a jury of any or all issues."
Jaynes points out that Marrow gave no reason for his long wait in requesting a jury trial; that as a "matter of law" all rights to a jury trial were waived.
There are two distinct rules controlling the matter which Jaynes attempts to combine into one operative regulation. This he cannot do.
[1-2] The first is Rule 38 providing how a party to an action may secure a jury trial as a matter of right. If he fails to act in accordance with this rule he has no legal right to have a jury no matter what reasons he may give in excuse or for neglect. The second is Rule 39, which permits the court, in its discretion, to order a jury trial of any and all issues. It is this rule which has been applied here by the trial court and in so doing the court may exercise its discretion without interference from this court.
As far as Marrow's belated request for a jury is concerned the only error of the trial court in the instant action was its failure to expressly deny the motion before it, thus making it clear he was exercising his discretion under Rule 39 (b).
We realize that "judicial discretion must have some rational basis. It is not synonymous with judicial whim or caprice" (Moore's Federal Practice, Vol. 5 page 718), but such a rule does not mean that a trial judge under our Rule 39 (b) has to give any reasons why he desires a jury in a case. Under the similar federal rules the federal trial courts have gradually adopted a severe attitude towards belated jury requests and now require that the discretion to grant not be exercised "* * * unless there appears in the record a showing of the existence of some plausible circumstances that would cause or justify the mind to act." Moore's, supra, page 716, section 39.09. Moore then proceeds to cite Judge Delehant's statement in Arnold v. Chicago, B. Q. R. Co. (D. Neb. 1947), 10 FR Serv. 39b.2, Case 2, 7 FRD 678, 680, wherein he said:
"It may be added that as a matter of judicial administration judicial indulgence ought rarely to grant a trial by jury in default of a timely request for it. Such laxity is calculated to inspire indifference to the requirements of the rules in their entirety, to countenance tardiness in procedural and trial performance, and ultimately to defeat the avowed purpose of the rules to achieve punctuality in the administration of justice. More immediately, it will inevitably create confusion in trial dockets and accomplish unanticipated and intolerable continuances of trial. The consequences are uninviting."
Moore concludes at pages 718 and 719 that: "Counsel desirous of obtaining relief from waiver should be careful to spell out the basis or bases of his motion for relief, since it is settled today that the mere statements of 'oversight' or 'inadvertence' does not suffice to invoke the discretion of the court."
Moore does point out though that: "Since the grant or denial of relief from a waiver is committed to the trial court's discretion the appellate courts normally refuse to interfere." Moore's, supra, p. 715, § 39.09.
Thus it appears that in the federal trial courts where a belated jury demand is made, counsel must now give valid reasons for the request or else the trial court will not choose to exercise its discretion to consider it. We do not care to follow this interpretation in applying our rules. Trial courts, either with a belated motion before them, with or without reasons stated therein, or, without any motion at all, may order a jury trial because it is within their discretion so to do. Since no reason need be given the fact, if it be one here, that the wrong reason was given for granting the motion, is immaterial because the court on its own motion could have ordered the jury trial without giving any reason whatsoever.
The judgment is affirmed.
MR. JUSTICE DAY and MR. JUSTICE DOYLE concur.
MR. JUSTICE MOORE, MR. JUSTICE KNAUSS, MR. JUSTICE HALL AND MR. JUSTICE FRANTZ concur in the result.