Phillips v. SchmidtPhillips v. Schmidt
This is an appeal by plaintiff from a judgment: (1) recalling an order of court fixing the amount of a jury cost bond and the time within which it is to be filed; (2) ordering the case to be fixed for trial on its merits on the non-jury docket of court; and (3) denying a request for transfer to the jury docket.
To understand the procedural posture of the case it is necessary to relate the sequence of filing of the various pleadings:
May 17, 1972 petition filed.
May 18, 1972 supplemental and amended petition filed praying for trial by jury, served on defendants May 20 and May 22, 1972 respectively.
May 31, 1972 answer of defendants and reconventional demand against plaintiffs.
August 18, 1972 attorney for defendants move the case to be placed on proper call docket for fixing and trial on the merits.
February 7, 1973 pretrial conference held.
May 15, 1973 notice of trial fixed for June 5, 1973. The notice contains no mention of trial by jury.
May 31, 1973 motion to continue trial date by defendant attorney.
August 24, 1973 notice of trial fixed for Oct. 11, 1973.
September 4, 1973 answer to reconventionale demand.
September 12, 1973 jury order filed by plaintiff and signed by trial judge, ordering trial by jury on posting jury cost bond of $500.00 on or before September 30, 1973.
September 12, 1973 deposit of $16.00 cash with Clerk of Court for jury.
September 26, 1973 bond for costs filed.
October 9, 1973 rule to show cause filed by the defendant, seeking to recall jury order signed September 12, 1973 and to deny plaintiff jury trial.
November 7, 1973 judgment on rule signed, forming the basis of this appeal.
The first issue before us is whether the request for jury trial was timely filed. It is to be noted that the document containing the request is the supplemental and amended petition filed the next day after the original petition was filed. However, an order fixing the amount of bond for the jury trial was not obtained or filed until over a year later, September, 1973, after the matter had already been placed on the non-jury docket by defendant and trial had been set. It has been clearly decided in the case of Guilbeau v. Mires, 262 La. 596, 263 So.2d 903 (1972) that the only requirement in
Additionally, we point out that
We first address ourselves to the question of whether there is a waiver in fact. Appellee points to the long delay between the request for jury trial, and the order for jury bond, and argues that during this period the matter of a jury trial was discussed and settled at the pre-trial conference in February, 1973. Appellant argues to us that he waived nothing; that the long delay between prayer and bond order was caused by inadvertence; that he should be excused because the delay was caused by neglect of the Clerk of Court, the trial judge, or some of appellant‘s perhaps unskilled employees, in not insuring that the order was filed and signed at the same time as the supplemental petition. We are completely unimpressed with appellant‘s argument, except perhaps with his last premise of unskilled employees, apparently borne out by the record. The record shows no reason whatsoever for the delay in presentation of the order to the judge except that none was filed in the record. The record additionally indicates that the supplemental petition was served without any order attached. We conclude that counsel simply failed to file an order until his belated recognition of its necessity over a year later.
On the other hand, we cannot agree with appellee‘s argument of waiver at pretrial conference. There is no pretrial order rendered or any other document in the record which would indicate to us one way or another what was discussed and decided at the pretrial conference.
We now consider the pleadings to determine if there is a legal waiver or procedural circumstance which may bar jury trial. We are referred to the case of Latino v. Rush, supra, reaching one result, and the cases of Barberito v. Green, 275 So.2d 407 (La.S.Ct.1973) and Jenkins v. Prager, Inc., 299 So.2d 561 (La.App.4th Cir. 1974), reaching the other. Examining the record, we note that, at the time of the motion of defendant-appellee to set the matter on the non-jury docket and the subsequent fixing of the trial dates by the Court, there was no answer filed in the record to the defendant‘s reconventional demand.
Additionally, since the non-jury trial date was improperly set, we do not have to consider here the problem of disruption of the orderly process of court occasioned by
We next address ourselves to the issues of the requirements of posting the jury bond and jury fee. The pertinent statute controlling jury costs in the Parish of Orleans is
This brings us to the last issue before us, that is the validity of the bond furnished. Quite frankly, we cannot imagine a bond more beset with infirmities. We list the following, not necessarily in the order of importance. The bond refers to an order by Judge Levy rather than an order by Judge Garofalo and the date of the order is blank. In that same paragraph one other blank is not filled in and another blank is incorrectly filled in. The bond, on the date filed, was apparently not signed by the principal, nor were the affidavits of principal and surety executed in accordance with
With the procedural posture of the case in the condition that we have described above, we are of the opinion that at the time of the rendition of the judgment, since answer had been filed, and since the bond supplied was defective, the judgment was correct to the extent that it refused to transfer the case from the non-jury call docket to the jury docket. However, we do not agree that the judgment was correct in recalling and setting aside the order fixing the jury cost bond and the time within which it was to be filed.2 It is our opinion that instead of recalling the bond order, the trial judge should have granted to plaintiff four judicial days in which to furnish a proper bond. In reaching this conclusion we are aided by the fact that the trial date which had been improperly set, had apparently been cancelled as a result of the hearing appealed from.
Accordingly the judgment appealed from is recast to read “It is ordered, adjudged and decreed that the plaintiffs herein, John Phillips et al, are granted four judicial days from the effective date of this order within which to furnish a new jury cost bond as provided in
Judgment recast.
Notes
As amended by Act 68 of 1973 the second sentence in Section A reads as follows:
“The party paying for the jury shall deposit with the clerk of the civil district court the sum of sixteen dollars as jury costs and shall give bond in favor of the said clerk for such amount as may be determined by the judge presiding over the division of the civil district court to which the case has been allotted for trial, to cover the additional cost and compensation to be paid to the jury.”
We note that Act 540 of 1968 states: “* * * The party praying . . .“It would appear that the omission of the letter “r” from the word “praying” is simply a typographical error, otherwise the sentence would be inappropriate. The ultimate party “paying” is the party finally cast for costs.