Rowe Furn. Corp. v. Carolina Wholesale Furn. Co.

292 S.C. 575 (1987)

357 S.E.2d 725

ROWE FURNITURE CORPORATION, Respondent v. CAROLINA WHOLESALE FURNITURE CO., INC., and William H. Smoak and Faye W. Smoak, jointly and severally as personal guarantors of the debts of Carolina Wholesale Furniture Co., Inc., Appellants.

0982

Court of Appeals of South Carolina.

Submitted May 27, 1987.

Decided June 22, 1987.

George W. Cone, of McLeod, Fraser & Cone, Walterboro, for appellants.

Craig S. Kelly, of Craig S. Kelly, P.A., Columbia, for respondent.

Submitted May 27, 1987.

Decided June 22, 1987.

Per Curiam:

This is an appeal from an order of the Circuit Court denying the motion for a jury trial by appellants Carolina Wholesale Furniture Co., Inc., and William H. and Faye W. Smoak in the suit against them by respondent Rowe Furniture Corporation. We dismiss the appeal as premature.

*576 S.C.R. Civ. P. 38 provides that the failure of a party to demand a jury trial within ten days of the service of the last pleading constitutes a waiver of trial by jury. Carolina Wholesale and Mr. and Mrs. Smoak did not demand a jury trial as required by this rule.

Rule 39(b) provides that "notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by jury of any or all issues." Carolina Wholesale and Mr. and Mrs. Smoak subsequently moved for a jury trial pursuant to this rule. They argue that the Circuit Court abused its discretion in denying their motion.

"An order denying a party a jury trial is not immediately appealable unless it deprives him of a mode of trial to which he is entitled as a matter of right." C & S Real Estate Services v. Massengale, 290 S.C. 299, 300, 350 S.E. (2d) 191, 192 (1986). Since the question of whether to order a jury trial in the instant case is a matter within the discretion of the Circuit Court, Carolina Wholesale and Mr. and Mrs. Smoak are not entitled to a jury trial as a matter of right. Therefore, their appeal is premature.

Accordingly, this appeal is

Dismissed.