OPINION
This action was brought by the District Attorney General for Davidson County, Tennessee, on October 18, 1973 for the purpose of abating a public nuisancе allegedly being conducted by the appellants. The action was filed pursuant to T.C.A. § 23-301 et seq., and was brought in the Chancery Court of Davidson County.
The appellants filed an answer to the complaint and incorporated therein a demand for trial by jury.
The statutes so providing were expressly repealed by the 1972 Public Act above rеferred to.
There is no question but that prior to 1972, the defendant in an action to abate a public nuisance had a statutory right to a jury trial. State ex rel. Mynatt v. King,
“We do not hold that the customary option оf a jury trial must be accorded under this act because of any right under thе common law. That right does not relate to trials in equity courts.”137 Tenn. at 28 ,191 S.W. at 354 .
In view of the repeal of the statute, we hold that there is no longer a genеral statutory right to trial by jury in an action of an equitable nature. Of coursе, insofar as the chancery courts exercise concurrent jurisdiction with the circuit courts in law cases, or where the chancery court is authorized to try cases in which there is a constitutional or special statutory right to a jury trial, a jury may properly be demanded. The authority for trial by jury in such cases does not rest upon the repealеd statute, but upon the constitution itself or upon special statutes governing particular kinds of cases.
It is insisted by appellants, however, that the language of Rule 38 of the Tennessee Rules of Civil Procedure, whiсh became effective on January 1, 1971, has the effect of preserving the right of trial by jury as it existed on the effective date of the Rules. Rule 38.01 states:
“The right of trial by jury as declared by the Constitution or existing laws of the stаte of Tennessee shall be preserved to the parties inviolate.”
It is stated in the Committee Comment to this Rule that the Rules of Civil Procedure were not designed or intended to abridge any constitutional or statutory rights to jury trial, since these rights were deemed to be matters of substantive lаw and not merely procedural. The Rules themselves do not purport to be a separate source or authority for the right to jury trial, since they are only procedural in nature. T.C.A. § 16-113.
It was clearly the intentiоn of the Advisory Committee in drafting the Rules, and of this Court and of the General Assembly in adopting them, to leave to the General Assembly or to constitutional law the questions of when and whether there exists a right to a jury trial. The Rulеs simply undertake to set out the procedures for demanding a jury wherе the right to jury trial exists.
The insistence of appellants, therefore, thаt their right to jury trial was in some manner preserved by Rule 38 from, and after the effective date of the repeal of T. C.A. § 21-1011 is without merit.
The Chancellor correctly held that there no longer exists a general statutory right to trial by a jury in cases of a purely equitable nature. He disallowed thе jury demand in the present case but permitted a discretionary appeal pursuant to T.C.A. § 27-305. We agree with his conclusions, and the judgment of the Chancery Court is affirmed at the cost of the appellants.
The сause will be remanded to the Chancery Court for further proceedings.
Notes
. E. g., T.C.A. § 36-812 authorizes jury trials in divorce actions.