24 Colo. App. 149 | Colo. Ct. App. | 1913
Lead Opinion
Appellee Gove, as plaintiff below, recovered judgment in the district court against the Peeps Fixture Company, appellant, on a promissory note which it was alleged was executed by the Fixture Company, and delivered to one Frazier, who assigned the same to plaintiff. The answer sets up several defenses, but, in the view we take of the case, it is not necessary to give any particular consideration to these defenses, or ‘to the defects therein. The answer stated a good defense; indeed, it is not contended on behalf of plaintiff that it did not do so.
Under the pleadings and the evidence the case was clearly one for a jury, but the defendant was denied the right to a jury trial, said denial being based upon the following facts, so far as we are able to glean them from the record: On the 20th day of November, 1909, the plaintiff’s counsel served written notice upon defendant’s counsel that he would ask to have the case set down for trial. Defendant’s counsel signed a receipt for a copy of the notice, or indicated thereon that he had received a
“The Court: Under a rule of this court, when notice is served setting a case for trial upon its merits, the rules of the court require that the notice shall indicate whether it is a trial to the court or a trial to a jury, and if the notice doesn’t indicate whether it is a trial to the court or a trial to a jury, and if the notice doesn’t indicate on the part of the counsel serving the notice upon counsel receipting for the notice, it is set for trial to the court.
“Mr. Stair [Attorney for Defendant]: The defendant excepts for the reason that the original notice had no indication as to whether or not a jury would be asked for; that counsel for the defendant was not aware of a rule of court to that effect, and in order to remedy the error put in a specific motion (six days before the trial) for a jury.
‘‘The Court: The rule to which the court has called counsel’s attention is printed and published in the rules of this court, and you are bound to take notice of them. ’ ’
All that we know with reference to the rule of the trial court referred to is what appears in the colloquy
There are other matters discussed in the brief, to which we shall not allude; our silence, however, must not be construed as indicating that we found no other error in the record than that to which we have already adverted.
The judgment is reversed, with leave to either party to amend their pleadings as they may be advised.
Reversed and Remanded.
Rehearing
On rehearing:
Counsel for appellee in his brief on petition for rehearing challenges the accuracy of the statement of the trial judge concerning the rule of the district court referred to in the original, opinion, and in his brief sets forth what purports to be the rule in full. As stated in the original opinion, our only knowledge of the rule of the district court was what appeared in the abstract. Indeed, there was no other proper source of information to which we could resort. Counsel for appellee, with commendable frankness, admits that if the rule of the district court had been as stated by the trial court our condemnation thereof was warranted. Without intending or meaning to impugn the good faith of counsel for appellee, we cannot consider the rule of the district court as set forth by him in his brief on rehearing as though the same had been established by competent proof on the trial. We cannot consider for evidentiary purposes that which is called to our attention for the first time by brief. But if we were to accept the rule as stated in the brief, and treat it as though it were properly before us for our consideration, we are still disposed to think that the trial court erred in refusing to grant the request of defendant for a jury trial. The last clause of the rule itself, as it appears in appellee’s brief on rehearing, reads as follows:
“Whenever it shall appear to the court that any case in which a jury trial has been waived ought properly to be tried by a jury, the court may direct that the case shall be tried to. a jury, in which event the case may be continued to a time when the jury is present, and trial shall' proceed in all respects as though the jury had not been waived.”
As stated in the original opinion, this case was one pre-eminently for a jury. The defendant clearly had not intentionally waived its right to a jury. The waiver, at best, was but an oversight on the part of its counsel, due to his lack of .familiarity with the rules of the trial court. We think the trial court abused its discretion in this case in arbitrarily enforcing a waiver thus unwittingly and unwillingly made. Nor can we yield assent to counsel’s contention that the application and enforcement of the rule in question by the trial court, under the circumstances disclosed by the record in this case and referred to in the original opinion, deprived the defendant of no substantial right, for the right of a trial by jury is universally regarded as an important one.
Rehearing Denied.