Schloemer v. Uhlenhopp

Decision Date05 February 1946
Docket Number46843.
Citation21 N.W.2d 457,237 Iowa 279
PartiesSCHLOEMER v. UHLENHOPP.
CourtIowa Supreme Court

Edward R. Boyle, of Clear Lake, for appellant.

Uhlenhopp & Uhlenhopp, of Hampton, for appellee.

SMITH Justice.

Plaintiff on appeal makes two contentions: (1) That Rule 177 of our Rules of Civil Procedure is repugnant to and in violation of his constitutional right to a trial by jury; and (2) that under the Rule as amended his motion for jury trial should have been sustained.

Appellee has filed no brief, apparently unconcerned as to the result of the appeal. This is understandable perhaps in view of the nature of the action, but is unfair to the trial court which sustained his contention and to this court, unfortunately confronted by the duty of making a right decision, unaided by an appellee's brief and regardless of his indifference in the matter.

I. Rule 177 so far as material here, provides:

'(a) Jury trial is waived if not demanded according to this Rule; but a demand once filed may not be withdrawn without consent of all parties not in default.'

'(b) A party desiring jury trial of an issue must file a written demand therefor, either by endorsement on his pleading, or within ten days after the last pleading directed to that issue.'

It has been amended by adding thereto the following:

'(d) Notwithstanding the failure of a party to demand a jury in an action in which such demand might have been made of right the court, in its discretion on motion and for good cause * * * may order a trial by jury of any or all issues.' 51 G.A. p. 340.

Appellant asserts the Rule is repugnant to Section 9, Article I of the Iowa Constitution which says: 'The right of trial by jury shall remain inviolate.'

We have not heretofore been required to pass on the question raised by this assignment. However, in Hampton v. Burrell, 17 N.W.2d 110, 114, while the constitutional question was not raised we said:

'Unless we are to ignore Rules 177 and 178 the denial of a jury trial does not entitle defendant to a reversal. The Rules preserve the right of jury trial in all cases in which it previously existed but provide that such a trial is waived if not demanded according to Rule 177. Incidentally, a statute in force from the Revision of 1860 until the Rules took effect provided that a jury trial could be waived. Section 11519, Code 1939. See Vaux v. Hensal, 224 Iowa 1055, 1058, 277 N.W. 718; Shores Co. v. Iowa Chemical Co., 222 Iowa 347, 268 N.W. 581, 106 A.L.R. 198.'

The dissenting opinion (by four justices) in that case makes no question of constitutionality of the Rule but argues that under the Record the appellant had substantially complied with its requirements and should have been allowed a jury trial.

Appellant here cites eight cases from other jurisdictions and quotes general language from some of them asserting in various ways the inviolability of the right in a proper case to jury trial. We have examined all the cited cases and find in none of them any language or holding applicable to a statute or rule of court such as we have here, regulating the procedure in civil cases by which the litigant must demand his right. The same is true of the Iowa cases cited.

There seems no doubt of the proposition that the legislature may make reasonable regulations as to the practice and procedure in civil cases so long as the right to a jury trial is not materially impaired. 35 C.J. 226, Juries, §§ 146, 147, 148. 'It may provide that to entitle a party to a jury trial he must make a demand therefor, and may prescribe at what stage of the proceedings, and in what manner, the demand shall be made, and may also require him to file within a certain time a notice that a jury trial will be demanded.' 35 C.J. 227; 31 Am.Jur., Jury, § 32.

Statutory provisions analogous to Rule 177 are not unknown in Iowa. Section 10724, Iowa Code 1939, pertaining to Superior Courts, provides: 'When causes are assigned for trial, any party desiring a jury shall then make his demand therefor, or the same shall be deemed to have been waived.' Enforcement of this rule was held not to deprive a litigant of any constitutional right. Waterman v. Randlett, 84 N.W. 680 (not reported in Iowa reports).

Appellant concedes that under the federal rules of Civil Procedure, rule 38, 28 U.S.C.A. following section 723c, 'a written demand for a jury trial must be in accordance with the rule.' He argues however that the United States constitution, amend. 7, says 'the right of trial by jury shall be preserved,' whereas our Iowa constitution, art. 1, § 9, says it 'shall remain inviolate' and that the difference in language compels a different construction.

We are not inclined to agree with this refinement of interpretation. The intention of the two constitutional provisions is obviously the same. No case is cited that holds there is any difference between 'preserving' a right and holding or keeping it 'inviolate.'

A quite recent decision of the Illinois Supreme Court is in point because the constitution of that state also provides that the right of trial by jury 'shall remain inviolate.' Smith-Hurd Stats. Ill.Const. art. 2, § 5. The Illinois Civil Practice Act contained provisions imposing upon litigants the duty to remand jury trial, not essentially different from our Rule 177. The court says: 'The very words of the constitution intend that in order to have a jury trial, some affirmative act toward that end may be taken by a party litigant.' Stephens v. Kasten, 383 Ill. 127, 48 N.E.2d 508, 510. See also Leahey v. Heasley, 127 Conn. 332, 16 A.2d 609.

Appellant further argues that Rule 177 does 'abridge, limit and modify' a substantive right and is therefore in excess of the rule making power of the court granted by Chapter 311 of the Acts of the Forty-ninth General Assembly under which the Rules of Civil Procedure were promulgated. The argument begs the question. It assumes the correctness of the proposition...

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