Ex parte Ansley

• Decision Date: 26 July 1895
• Citation: 18 So. 242,107 Ala. 613
• Parties: EX PARTE ANSLEY.
• Court: Alabama Supreme Court

18 So. 242

107 Ala. 613

EX PARTE ANSLEY.

Supreme Court of Alabama

July 26, 1895

Petition by O. E. Ansley for a writ of mandamus to James W. Lapsley judge of the city court of Anniston, to compel him to vacate an order transferring a suit from the jury to the nonjury docket. Writ denied.

Matthews & Whiteside, for petitioner.

D. C Blackwell and John B. Knox, for defendant.

HEAD J.

The act amending the act creating the city court of Anniston provides, in section 6: "That in all civil cases at law in said court the issue and question of fact shall be tried by the court without the intervention of a jury, unless a jury be demanded by the plaintiff at the commencement of the suit, or when the cause is at issue, by endorsing such demand on the summons and complaint or other original process, or by the defendant or other party at his appearance by endorsing such demand in writing on the plea or demurrer or other pleadings. Provided, that when a cause is transferred to said city court, the demand for a jury shall be made at the time of the application for said transfer, and a failure to demand a jury as above directed shall be deemed and held a waiver of the rights of trial by jury; and provided further, that when a cause shall have been tried without the intervention of a jury, and a new trial granted by the court, or when the same shall have been reversed and remanded by the supreme court that either party to the cause may demand a jury; provided such demand is made at the first sounding of the cause thereafter; and provided further, that any party so demanding a trial by jury, shall at the time of said demand, deposit with the clerk of this court four dollars as a jury tax fee. This jury tax fee shall be taxed as other costs in the case and if the party so demanding a jury is successful in the cause, this fee shall be refunded to him when collected by the clerk." In a suit at law, instituted against relator, as defendant, in said city court, he duly appeared, by filing his pleas to the action. At the time of doing so, he orally demanded of the clerk a trial of the cause by a jury, and deposited with the clerk four dollars as a jury tax fee, in compliance with another provision of the act. He made no demand, in writing, indorsed upon the plea. The clerk made thereon this indorsement: "Received $4 as jury tax fee in this case. April 6, 1895. [Signed] A. H. Sheppard, Clerk." He also placed the cause on...