2 La. Ann. 651 | La. | 1847
The judgment of the court was pronounced by
Aftor issue joinod, .the defendant Ledoux, by a supplemental answer, prayed for a trial by jury, which the court refused, and a bill of exceptions .was taken.
The Code of Practice, art. 495, declares that the defendant, who wishes for 5. trial by jury, must pray for it in his answer, or previous to the suit being set down for trial. It appears that this cause had been set for trial several times, ?nd had been cpntinued without day. At the time that the prayer for a jury .was made, it does not appear that the cause was thfin set down for trial. If this reason had existed, we should have sustained the refusal; but the mere fact that on former occasions the cause had been set for trial, was not a sufficient reason for rejecting the application. There is, we are informed, a difference of opinion among the district judges of New Orleans, on this point ; but that which we have expressed we believe to be in accordance with the intention of the lawgiver. The object was, that when the cause stood assigned for a particular day pt? th,e trial list of court cases, the cause should not bp delayed by interposing a prayer for a jury.
The plaintiff cites, as sanctioning a different interpretation, tjie decision in Menefee v. Johnson, 2 Rob. 277. But on examining that case, wo find the court merely s.tated, in the words of the Code of Practice, that the prayer for a jury .came too late, after the cause had been set for trial. What the particular circumstances then were the opinion does not state, nor, on examining the re.cord, have we been able to ascertain them. So that we are unable to say, y?b.0ther the facts are the same as those now presented.
Considering that the defendant had a right to have his cause tried by a jury, and has been deprived of that privilege, we are obliged to remand the cause. See the case of Whitehead v. Brigham, 1 An. Rep. 317.
It is therefore decreed that the judgment of the court below be reversed, and that this cause be remanded for a trial by jury; the plaintiffs paying the posts of this appeal.
