East Tennessee, V. & G. R. Co. v. Martin

Citation2 S.W. 381
CourtSupreme Court of Tennessee
Decision Date12 October 1886
PartiesEAST TENNESSEE, V. & G. R. CO. <I>v.</I> MARTIN.

W. M. Baxter and W. A. Henderson, for plaintiff in error. Chambers & Pritchard, for defendant in error.

SNODGRASS, J.

The act approved February 19, 1875, to regulate trials by jury, provides "that hereafter, when any civil suit is brought in any of the courts of record of this state, whether such suit comes to such court by summons, appeal, certiorari, or otherwise, and which is non-triable by jury, either party desiring a jury shall, in case of original suits, demand a jury in his first pleading tendering an issue triable by jury, and, in case of all other suits, shall demand a jury within the first three days of the trial term; and, if no such demand is made as aforesaid, the clerk shall place such cause on the docket, to be styled the "Non-jury Docket," and a failure to demand a jury as aforesaid shall be deemed and held conclusive, by an agreement of the parties, to submit all issues and questions of fact to the decision of the judge without a jury," etc. Acts 1875, p. 6.

The proper construction of this act requires that the demand, "in all other suits" in which it is not to be made in the pleadings, shall be made of the court. The demand "in the pleadings" is addressed to the court; for while declarations, unlike bills in chancery, are not in form addressed to the judge of the court in which they are filed, yet they are so in fact, as are all other pleadings in the case; and the demand "in the pleadings" is addressed to the court. So it is intended should be the demand not in the pleadings. Such demand might be by petition filed in the case with the record, or motion made, and entry thereof noted in the minutes. But, in whatever form made, it must be of the court, and within the first three days of the term; and it should properly appear that the attention of the court was attracted to it, and record made of his action therein, in order that the case might be placed upon the proper docket, and that any error committed by the court might be, if necessary, reviewed and corrected. No demand of the clerk, nor mere notice to him that a jury is demanded, nor entry by him upon a rule-docket, or other docket, at the instance of one of the parties is sufficient; and if the clerk, under such notice or direction, places a case in which no such demand has been made upon the jury docket, it will not...

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