3 Mich. App. 275 | Mich. Ct. App. | 1966
This action was brought by the wife of decedent, Leo M. Ritchie, on her own behalf, as administratrix on behalf of the estate, and as guardian of the children. The complaint filed March
Prior to the close of the pretrial conference on February 19, 1965, there was no written demand made for a jury trial and the jury fee was not paid. During the pretrial conference, the following-question was asked by the pretrial judge: “Is this a jury case ?” Attorney for the plaintiff answered in the affirmative. The pretrial judge, taking the statement as correct, made the following comment on the pretrial statement: “Close pretrial, set for trial, jury calendar, soon as possible.”
On the morning of June 15, 1965, the parties appeared in the Macomb county circuit court for trial. The trial judge noticed the pretrial statement and asked if anyone had asked for a trial by jury. Attorney for plaintiff claimed he had demanded a trial by jury during the pretrial conference. Attorneys for the defendants denied that such a demand had been made. The trial judge, finding that the record did not disclose a written demand for a jury trial and payment of the jury fee, denied plaintiff a trial by jury. From the denial of a jury trial, plaintiff has processed this appeal.
It is not disputed that plaintiff failed to comply with GCR 1963, 508.2(1) :
“Actions Commenced in Circuit Court. Any party may demand a trial by jury of any issue so triable of right by filing- a demand therefor in writing at any time after the commencement of the action and not later than 30 days after the filing of the answer or a reply filed within the time prescribed. Such demand may be indorsed on a pleading of a party if notice of*278 the demand is included in the entitlement of the pleading.”
It is also undisputed that plaintiff has failed to pay the jury fee as required by CLS 1961, § 600.2537 (Stat Ann 1962 Rev § 27A.2537):
“In every case where a trial by jury is demanded, the party making the demand shall, at the time of filing the demand, pay to the clerk of the court the sum of $3.00. Failure to pay the fee within the time provided in the court rules constitutes a waiver of the right to a jury trial. Such sum shall be taxed in favor of the party paying the • same, in case he recovers a judgment for his costs.”
Although plaintiff contended before the trial court, and before this Court in his initial brief, that he demanded a trial by jury during the pretrial conference, in the supplementary brief filed with this Court plaintiff admits that no such demand was made by him. Plaintiff further admits the pretrial judge’s comment “Close pretrial, set for trial, jury calendar, soon as possible” was an erroneous notation and that the pretrial judge did not exercise his discretion by placing the case on the jury calendar.
The only question on appeal therefore is whether the error by the pretrial judge in placing the case on the jury calendar is sufficient to grant a trial by jury to plaintiff where such a jury trial has been otherwise waived.
The error in the pretrial statement was caused by the action of plaintiff’s attorney, for it was his affirmative answer to the pretrial judge’s question, “Is this a jury case?” which caused the pretrial judge to record in his pretrial statement: “Close pretrial, set for trial, jury calendar, soon as possible.” Plaintiff on appeal will not be heard to claim he was misled or prejudiced by the pretrial statement.
We find no abuse of discretion by the trial court in denying plaintiff’s motion for a trial by jury. The decision of the trial court is affirmed.
There was no ehange from article 2, § 13 of the 1908 Constitution, except for the addition of a second sentence which permits verdicts in civil cases when at least 10 jurors agree.