Weber Electric Company v. Tuminelly, Inc.

Annotate this Case

206 N.W.2d 656 (1973)

WEBER ELECTRIC COMPANY, Plaintiff, v. TUMINELLY, INC., defendant and third-party plaintiff, Respondent, v. DORSO TRAILER SALES, INC., third-party defendant, Appellant.

No. 43564.

Supreme Court of Minnesota.

April 20, 1973.

*657 Wiese & Cox, and Paul G. Neimann, Minneapolis, for appellant.

James G. Paulos, St. Paul, for respondent.

Heard before KNUTSON, C. J., and OTIS, KELLY, and SCHULTZ, JJ.


This is an appeal by a third-party defendant, Dorso Trailer Sales, Inc., from an order denying it a new trial. The only issue is whether it was error not to grant appellant a jury trial. We hold that it was and reverse.

It is undisputed that both a jury trial and a court trial were designated in various notes of issue. Although the respondent third-party plaintiff supports appellant's contention that appellant had specifically asked the court for a jury trial, the court had no recollection of the motion and the record was silent on the subject.

Rule 38.01, Rules of Civil Procedure, entitled the parties to a jury trial unless the right was waived under Rule 38.02. The latter provision specifies the manner of waiver as follows:

"In actions arising on contract, and by permission of the court in other actions, any party thereto may waive a jury trial in the manner following: (1) By failing to appear at the trial; (2) By written consent, by the party or his attorney, filed with the clerk; (3) By oral consent in open court, entered in the minutes."

Under the circumstances, we conclude that the appellant has not consented to waive a jury and should have been granted a new trial.