Warren v. Scudder-Gale Grocery Co.

• Court: Tennessee Supreme Court
• Writing for the Court: McAlister
• Citation: Warren v. Scudder-Gale Grocery Co., 36 S.W. 383, 96 Tenn. 574 (Tenn. 1896)
• Decision Date: 06 May 1896
• Parties: WARREN v. SCUDDER-GALE GROCERY CO.

36 S.W. 383

WARREN v. SCUDDER-GALE GROCERY CO.

Supreme Court of Tennessee.

May 6, 1896.

Appeal from circuit court, Gibson county; John R. Bond, Judge.

Suit by the Scudder-Gale Grocery Company against Jonathan Warren on account. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Hill & Jones, for appellant. Deason & Rankin and Walker & Biggs, for appellee.

McALISTER, J.

This is a suit on account, commenced before a justice of the peace of Gibson county. On appeal to the circuit court the cause was tried by the circuit judge without the intervention of a jury, and judgment pronounced in favor of the Scudder-Gale Grocery Company against the defendant, Warren, for the amount of the account. Among other assignments of error, it is insisted that the circuit judge erred in trying the cause without the aid of a jury. The record shows that on the 1st day of the January term, 1895, to which term the cause had been appealed, the plaintiff demanded a jury, and thereupon the court ordered the cause transferred to the jury docket. A continuance was had from time to time until the September term, 1895, when the cause was called for trial upon the jury docket, and, the defendant's application for a continuance having been overruled, plaintiff's counsel announced to the court that the jury heretofore demanded by the plaintiff would be waived; and thereupon, over the objection of defendant, the court proceeded to try the cause without the aid of a jury. This assignment of error is well made. The act of 1875¹ provides that when any civil suit is brought in any of the courts of this state, whether such suit comes to such court by summons, appeal, certiorari, or otherwise, and which is now triable by jury, either party desiring a jury shall, in case of original suits, demand a jury in his first pleading tendering an issue triable by jury. In the case of all other suits the demand for a jury shall be made within the first three days of the trial term, and, if no such demand is made as aforesaid, the clerk shall place such cause on the docket to be styled the "Nonjury Docket." It is further provided by said act that a failure to demand a jury as aforesaid shall be deemed and held conclusively an agreement of the parties to submit all issues and questions of fact to the decision of the judge without a jury, and, if such demand is made as aforesaid, then the clerk shall place the cause wherein the demand is made upon a docket to be styled the "Jury Docket." Said act further provides that at any time any cause on either of said dockets may, by consent of both parties, be changed from a jury cause to a nonjury cause, and vice versa, and shall be docketed according to the change. It was held by this court in Coulter v. Machine Co., 3 Lea, 115, that in appeal cases a demand for a jury, made after the first trial term, comes too late. The legislature in 1889 amended the act of 1875 so as to provide that "hereafter all suits now pending in the courts of this state or which may hereafter be brought, either party desiring a trial by jury, shall be entitled to a jury, provided he call for the same on the first day of any term at which the suit stands for trial and have an entry made on the trial docket, that he calls for a jury, and unless such demand is made and the entry thereof on the trial docket, it shall be the duty of the court to try the cause without a jury." "The legislature," says Mr. Elliott, "may rightfully provide for trial by the court in civil proceedings, where the parties agree to waive a jury, and may, within limits, regulate the mode of asking a jury trial. Where there is a...