85 Tenn. 134 | Tenn. | 1886
The act approved February 19th, 1875, to regulate trials by jury, provides “that hereafter, 'when any civil suit is 'brought in any of the courts of record of this State, whether such suit comes to such court by summons, appeal, certiorari, or otherwise, and which is now triable by jury, either party desiring a jury shall, in case of original suits, demand a jury in his first pleading tendering an issue triable by jury; and in case of all other suits shall demand a jury within the first three days of the trial term; and if no such demand is made as aforesaid, the Clerk shall place such cause on the docket, to be styled the non-jury docket, and a failure to demand a jury as aforesaid shall be deemed and held conclusively an agreement of the parties to submit all issues and questions of fact to the decision of a Judge without a jury,” etc. Acts 1875, page 6.
The proper construction of this act requires that the demand “in all other suits” in which it is not to be made in the pleadings shall be made of the Court. The demand “in the pleadings” is ad
In the case of Coulter v. Weed Sewing Machine Company (3 Lea, 115), it was held that if after
In the present case no valid demand was ever made. When the case was called for trial it was the proper time to object to trial by jury for this reason, and defendant then made the objection, which was overruled, and judgment rendered by the Circuit Judge for defendant in error.
It must be reversed and the cause remanded for a new trial.
This case settles the construction of the Act of 1875, Chapter 4 (Code (M. & V.), § 5 3602-3605), in conformity to Chief Justice Deaderick’s view of what is “the proper and better practice” (16 Lea, 422), and overrules the case of Railroad Co. v. Gross, 16 Lea, 720, indicating a different practice as the proper one.
This act has been construed in the following respects :
It is constitutional. 2 Lea, 684. In original cases, the pleadings cannot be amended so as to demand a jury trial after the issues have been joined, and a continuance had. 11 Lea, 190; 9 Lea, 231; 2 Lea, 684. At the issue term, the Court may, in its discretion, permit the amendment. 2 Lea, 688.
In appeal cases, a demand for a jury trial made after the first trial term, is properly refused. 3 Lea, 115. Without demand, the parties may consent to a jury trial. (Code (M. & V.), § 3605).
Not so, however, if the issues are changed after the first trial, io Lea, 365.
This act does not apply to jury trials in the Chancery Court. 6 Lea, 477-
The conclusion to the country, in a plea, is not a sufficient demand for a jury. Post, page-.