Griffin v. Pere Marquette Ry., Motion No. 330.

• Decision Date: 06 December 1932
• Docket Number: Motion No. 330.
• Citation: 245 N.W. 566,261 Mich. 50
• Parties: GRIFFIN v. PERE MARQUETTE RY.
• Court: Michigan Supreme Court

261 Mich. 50

245 N.W. 566

GRIFFIN

v.PERE MARQUETTE RY.

Motion No. 330.

Supreme Court of Michigan.

Dec. 6, 1932.

Appeal from Circuit Court, Wayne County; Ira W. Jayne, Judge.

Suit by Mary S. Griffin against the Pere Marquette Railway. From an order denying plaintiff the right to have her cause tried by a jury, plaintiff appeals.

Affirmed.

Argued before the Entire Bench.

J. H. M. Alexander, of Detroit, for appellant.

W. K. Williams and John C. Shields, both of Detroit, for appellee.

McDONALD, J.

This is an appeal from the Wayne circuit court to review an order denying to the plaintiff the right to have her cause tried by a jury.

Suit was filed on August 1, 1928. Issue was joined September 22, 1928. Former circuit court rule No. 39 provides that, if a party desires a jury, he must file a written demand therefor within 10 days after the clause is at issue; but, though a demand be not filed, the court may in its discretion transfer the cause to the jury calendar. The plaintiff's written demand was not filed until September 22, 1930, 2 years after the cause was at issue. On April 29, 1931, the case was assigned for trial. The plaintiff claimed the right to a trial by jury. The court entered an order of denial, and it is from this order the plaintiff has appealed.

The question is whether the court exercised proper judicial discretion in refusing the plaintiff's request for a jury.

Former circuit court rule 39 became effective May 15, 1927. It was not enforced in the Wayne circuit court until December 1, 1929. During that interim it was the practice recognized and acquiesced in by the judges to ignore the rule and call for a jury at any time without a previous written demand. In October, 1929, the judge decided to enforce the rule, and, that the members of the bar might be timely informed thereof, published the following notice for 45 consecutive days in the Detroit Legal News:

‘Notice to Attorneys.

‘On and after December 1, 1929, the Circuit Court rule requiring filing of notice for demand for jury trial will be strictly enforced. Until that time notice of demand for jury trial in pending cases will be received.

‘[Signed] Ira W. Jayne,

‘Executive Judge.'

The plaintiff's case was pending. It was too late to file a demand within 10 days after issue was joined; but the notice informed her attorney that the rule would be waived and his demand for jury would be accepted if filed before December 1, 1929. Notwithstanding this, he did not file his demand until ...