Heidler v. Heidler

256 S.E.2d 833 (1979)

42 N.C. App. 481

John HEIDLER v. Bonnie HEIDLER.

No. 7821DC1038.

Court of Appeals of North Carolina.

July 31, 1979.

*835 Randolph & Randolph by Clyde C. Randolph, Jr., Winston-Salem, for plaintiff-appellant.

Pfefferkorn & Cooley by David A. Wallace and J. Wilson Parker, Winston-Salem, for defendant-appellee.

PARKER, Judge.

The plaintiff assigns error to the trial court's failure to submit issues of fact to a jury. The plaintiff contends that this failure constituted reversible error because plaintiff had not given his consent to the withdrawal of defendant's jury trial demand as required by G.S. 1A-1, Rule 38(d). We agree and reverse.

Rule 38(d) provides:

Waiver.Except in actions wherein jury trial cannot be waived, the failure of a party to serve a demand as required by this rule and file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. A demand for trial by jury as herein provided may not be withdrawn without the consent of the parties who have pleaded or otherwise appear in the action. (Emphasis added.)

Rule 39(a) provides:

(a) By jury.When trial by jury has been demanded and has not been withdrawn as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless (1) The parties who have pleaded or otherwise appeared in the action or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the minutes, consent to trial by the court sitting without a jury, or (2) The court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes.

Taken together, G.S. 1A-1, Rules 38(d) and 39(a) provide that once any party to an action makes a timely demand for a jury trial, the trial of all issues so demanded shall be by jury unless all parties who have pleaded or otherwise appeared in the action, or their attorneys of record, affirmatively consent by oral or written stipulation to trial by the court without a jury or the court finds that no jury trial right exists as to some or all of the issues. These rules do not provide that failure to appear at the trial constitutes consent to a withdrawal of a valid jury trial demand, and in this case the timely demand made in defendant's answer operated as a demand by the plaintiff also. See, Bass v. Hoagland, 172 F.2d 205 (5th Cir., 1949).

New Trial.

MORRIS, C. J., and HARRY C. MARTIN, JJ., concur.