Stukey v. Stephens, Civil 2944

• Decision Date: 10 February 1931
• Docket Number: Civil 2944
• Parties: ALVIN STUKEY and J. H. WILLIAMS, Appellants, v. ANNIE STEPHENS, Administratrix of the Estate of W. B. STEPHENS, Deceased, ROSCOE STEPHENS, RAY STEPHENS and DICK STEPHENS, Appellees
• Court: Arizona Supreme Court

295 P. 973

37 Ariz. 514

ALVIN STUKEY and J. H. WILLIAMS, Appellants, v. ANNIE STEPHENS, Administratrix of the Estate of W. B. STEPHENS, Deceased, ROSCOE STEPHENS, RAY STEPHENS and DICK STEPHENS, Appellees

Civil No. 2944

Supreme Court of Arizona

February 10, 1931

APPEAL from a judgment of the Superior Court of the County of Mojave. M. T. Phelps, Judge. Judgment reversed and case remanded for new trial.

Mr Louis L. Wallace and Mr. John A. Ellis, for Appellants.

Mr. C G. Dolman, Mr. E. Elmo Bollinger, and Mr. E. S. Clark, for Appellees.

OPINION

LOCKWOOD, J.

W. B Stephens, Roscoe Stephens, Ray Stephens and Dick Stephens hereinafter called plaintiffs, brought suit against Alvin Stukey and J. H. Williams, hereinafter called defendants, for an injunction restraining and enjoining defendants from grazing or herding or watering their livestock upon certain property named in the amended complaint. The case was tried to the court without a jury, and findings of fact and conclusions of law were made and judgment rendered thereon against defendant Williams, and from the judgment rendered and the order denying the motion for a new trial he has appealed.

There are some sixteen assignments of error, many of which contain several subdivisions, but we think we need consider only one in determining whether or not the judgment should be affirmed. It is that the court erred in denying defendants a jury trial.

Under the law of Arizona either party to any litigation in the superior court is entitled as a matter of right and not discretion to a jury trial. Brown v. Greer, 16 Ariz. 215, 141 P. 841. This applies in equity as well as in law cases, and the fact that at present the verdict of the jury in an equity case is merely advisory does not change the rule. Brown v. Greer, supra; Donahue v. Babbitt, 26 Ariz. 542, 227 P. 995. While the court need not heed the advice of the jury, it must harken to it. Security Trust & Sav. Bank v. McClure, 29 Ariz. 325, 241 P. 515; Light v. Chandler Imp. Co., 33 Ariz. 101, 59 A.L.R. 107, 261 P. 969. This right, however, may be waived, and we have held that unless it is demanded seasonably such failure is equivalent to a waiver of a jury. Jenkins v. Skelton, 21 Ariz. 663, 192 P. 249; Mounce v. Wightman, 30 Ariz. 45, 44 A.L.R. 754, 243 P. 916. With these principles of law before us, let us examine the record to determine whether the court erred in refusing defendants a jury trial.

On examining the judgment-roll, we find that on the seventh day of April, 1928, and before the case was at issue, the following written request was duly filed in the superior court:

"Come now the Plaintiffs and request a jury trial in the above entitled action.

"CLARK & CLARK,

"C. G. DOLMAN,

"Attorneys for Plaintiffs."

It does not appear from the record that any further reference was made to the question as to whether or not the case should be tried by a jury until the matter came up on the second day of April, 1929, for trial. Some preliminary law questions were first determined by the trial judge then present, after which the following conversation took place between counsel and the court:

"Mr. Wallace: At this time owing to the fact that I guess both plaintiffs and defendants desired a jury trial of this case I ask that the case be set down for trial as the first disqualified case on the next jury calendar.

"The Court: I understood from the record that this case has been set down for today.

"Mr. Wallace: May it please your Honor, the plaintiffs demanded a jury trial in this matter.

"Mr. Clark: I do not know anything about that. We have never been served with that.

"Mr. Bollinger: This was brought up at the call of the calender last month, and it was stipulated that it be set down for trial at this time. The question was about the selection of a judge.

"The Court: Bring in your docket, Mr. Clerk.

"Mr. Wallace: I think I was present when the question came up as to the appointment of a judge.

"Mr. Clark: There was no objection. The issue was settled by the Amended Complaint. That went to the original Complaint, and there has been no demand made for a jury by anybody that we know of since the issues in this case was settled. The old motion that is referred to is a year old and applied to the case at this --

"Mr. Wallace: We have relied upon that, your Honor. . . .

"The Court: What does your record show?

"Mr. Clerk: March 11th, 1929, Civil Cause No. 2640, it is ordered that the record show the name of E. Elmo Bollinger be entered as associate counsel and it is ordered that said Cause be set for trial.

"The court: I deny the request for a jury. You may proceed." (Italics ours.)

The case was then tried before the court sitting without a jury.

We are of the opinion this was error. Section 3802, Revised...