Taylor v. Farmers' State Bank

• Decision Date: 18 June 1925
• Docket Number: 4 Div. 228
• Citation: 213 Ala. 356,104 So. 801
• Parties: TAYLOR v. FARMERS' STATE BANK.
• Court: Alabama Supreme Court

104 So. 801

213 Ala. 356

TAYLOR v. FARMERS' STATE BANK.

4 Div. 228

Supreme Court of Alabama

June 18, 1925

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

Action by the Farmers' State Bank against J.H. Taylor. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals. Affirmed.

E.C Boswell, of Geneva, for appellant.

Mulkey & Mulkey, of Geneva, for appellee.

MILLER J.

This is an action by the Farmers' State Bank against J.H. Taylor to recover certain personal property described in the complaint. The cause was tried by the court without a jury judgment was rendered in favor of the plaintiff, and this appeal is prosecuted by the defendant from that judgment.

The defendant filed the following objection to the court trying the cause without a jury:

"The defendant objects to going to trial in this cause without a jury, for the reason that there was a demand for a jury within 30 days from the time that the return of the sheriff on the summons and complaint was filed in the clerk's office, which was filed on the 7th day of September, and the sheriff's return shows service on the 8th day of September. Defendant offers to prove that this demand for a jury was filed within 30 days from the time the sheriff filed his return in the clerk's office."

The court overruled this objection, the defendant reserved an exception, and the court without a jury tried the cause. These are the errors assigned.

The plaintiff did not demand a trial by jury. That part of the statute (section 9498, Code 1923) applicable to this cause reads as follows:

"All civil cases at law shall be tried and determined by the court without a jury *** unless the defendant *** shall demand in writing a trial by jury within thirty days after the perfection of service on him."

This suit was commenced on September 7, 1923. A complaint setting forth the cause of action of the plaintiff, signed by its attorney, was filed with the clerk on September 7, 1923, and a summons was issued by the clerk of the court, and it was accompanied by this complaint. The sheriff of the county entered this indorsement thereon:

"Received this September 7, 1923, and executed this 8th day of September, 1923, by leaving a copy of the within summons and complaint with J.H. Taylor."

J.H Taylor is the defendant in the cause. The defendant on November 27, 1923, filed his pleas to this complaint, and his attorney wrote, signed, and had filed on November 27, 1923 the following thereon: "The defendant hereby demands a trial of this cause by a jury."

This defendant waived a trial by jury unless he demanded it in writing within 30 days after the perfection of service on him. Section 9498, Code 1923. The summons must be executed by the sheriff or other officer in any county, by leaving a copy of the summons and complaint with the defendant. Section 9419, Code 1923. The sheriff of this county left a copy of this summons and complaint with this defendant on September 8, 1923. This perfected service on the defendant. The...