71 N.C. App. 218 | N.C. Ct. App. | 1984
This case presents a single issue: Did the trial court err when it ruled that defendant had waived his right to a jury trial on the issue of absolute divorce? We find no error and therefore affirm.
Rule 38(b) of the North Carolina Rules of Civil Procedure provides in part that “[a]ny party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue.” The defendant’s answer was served on 28 December 1983; the plaintiffs reply was served on 6 February 1984 and filed on 9 February 1984. Defendant’s demand for a jury trial was filed and served on 9 February 1984. If the last pleading directed to the issue of absolute divorce is plaintiffs reply, then the defendant’s demand for jury trial was timely made; if the last pleading so directed is defendant’s answer, then it was not.
Clearly, the defendant’s answer is directed to the issue of absolute divorce, admitting as it does all allegations relevant to that issue. But is the plaintiffs reply also directed to this issue, thus rendering timely defendant’s demand for a jury trial? We are compelled to conclude that it was not. Defendant’s answer contains a counterclaim for custody and child support. The language in the section of that pleading denominated “counterclaim,” seemingly directed toward the issue of absolute divorce, is extrinsic to the subject matter of the counterclaim and is, therefore, superfluous. As a legal matter, plaintiff s reply addresses only the issues of child custody and child support. Insofar as plaintiffs reply admitted the grounds for absolute divorce, it was only repeating what had been alleged in the complaint and then admitted and realleged in defendant’s answer.
There are cases construing the substantially similar federal rule holding that a demand for a jury trial made within ten days of a reply does not necessarily cover issues raised in the complaint and answer, i.e., is not timely made, unless the counterclaim involved arises out of the subject matter of the complaint and is, therefore, compulsory. See Tights, Inc. v. Stanley, 441 F. 2d 336 (4th Cir.), cert. denied, 92 S.Ct. 90, 404 U.S. 852, 30 L.Ed. 2d 91 (1971); Consolidated Fisheries Co. v. Fairbanks Morse
Affirmed.
