Robinson v. Newton Grocery Co.

• Decision Date: 15 November 1917
• Docket Number: 4 Div. 744
• Citation: 200 Ala. 528,76 So. 854
• Parties: ROBINSON v. NEWTON GROCERY CO.
• Court: Alabama Supreme Court

76 So. 854

200 Ala. 528

ROBINSON v. NEWTON GROCERY CO.

4 Div. 744

Supreme Court of Alabama

November 15, 1917

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Action by the Newton Grocery Company against C.R. Robinson. Judgment for plaintiff by default, and the defendant moved to set aside the default. From the order declining to set aside the default, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Affirmed.

B.F Reid, of Dothan, for appellant.

Farmer & Farmer, of Dothan, for appellee.

McCLELLAN J.

By the act approved September 25, 1915 (Gen.Acts, p. 824), it is provided that the right of a defendant in a civil case to a trial by jury depends upon the indorsement by the defendant (presumptively including his counsel), of a demand for a trial by jury on "his initial pleading." By the act subsequently approved on September 28, 1915 (Gen.Acts, pp 939-941), it is provided:

"If the defendant or other person occupying the position of defendant or claimant desires a trial by jury he shall file a written demand therefor with the clerk of the court within thirty days after the perfection of service on him by indorsing such demand upon his initial pleading or by a separate written instrument. *** The failure to demand in writing a jury trial as herein provided shall be deemed and held a waiver of the right of a trial by jury, and either party demanding a trial by jury shall not have the right to withdraw such demand without the consent of the opposite party." (Italics supplied.)

The statement written on a replevy bond filed by the defendant in an action of detinue and signed by defendant's counsel demanding a trial by jury, is not a compliance with either of the acts cited above, since the replevy bond is not a "pleading," initial or otherwise; nor is the statement or demand thus made "a separate written instrument" within the purview of the act approved September 28, 1915. Under the terms of the act, there was a waiver on the part of this defendant to demand a trial by jury, the 30-day period after the perfection of service on him having expired before the judgment by default was taken and entered.

Amending Code, § 5346, the act approved September 28, 1915 (Gen.Acts p. 825), provides:

"When the summons, writ of attachment, or other process has been executed on the defendant, or service perfected on him as required by law, either in term time or vacation, the defendant shall appear and plead, answer or demur thereto within thirty days, or be in default, and on motion of the plaintiff, judgment by default may be rendered against the defendant. The court may by rule entered on the minutes of the court prescribe the time and manner of calling cases for judgment by default.

"Sec. 2. That section 5347 of the Code of Alabama of 1907 be and the same is hereby repealed."

Rule 5 in force in the circuit court of Houston county when this judgment by default was taken,...