Solosth v. Pere Marquette Ry. Co. , 255 Mich. 62 ( 1931 )

January 15, 1930, plaintiff began suit, in tort, by declaration, against defendant, to recover damages alleged to have resulted from injuries caused by defendant's negligence. January 31, 1930, defendant pleaded the general issue. The case was placed on the nonjury calendar. March 6, 1931, plaintiff demanded a jury trial and moved the case be transferred from the nonjury calendar to the jury calendar. March 10, 1931, defendant moved to strike from the files plaintiff's motion to transfer the case to the jury calendar and for a jury trial. March 14, 1931, the trial court granted defendant's motion. Plaintiff appeals.

When the case was at issue, Circuit Court Rule No. 39 was in force. It provided:

"A party desirous of a trial by jury shall make his demand for a jury in writing, and file such demand with the clerk, and serve copy thereof upon counsel for opposite party within ten days after the issue is joined in the cause, otherwise he shall be deemed to have waived his right to a jury. * * * But the court in its discretion may transfer any case to the jury calendar, although demand for a jury was not filed as herein provided."

The statute, 3 Comp. Laws 1929, § 14263, provides:

"All issues of law shall be tried by the court, and all the issues and questions of fact shall be tried by the court, unless a jury be demanded by one of the parties, in a manner prescribed by the rules of the court: Provided, That in all actions of tort, and in all other actions, the subject-matters whereof are, in the opinion of the court, peculiarly proper for the consideration of a jury, it shall be competent for the court to order the cause to be tried by a jury."

Section 3 of Rule No. 1 of the 1931 revision of Michigan Court Rules provides:

"Rules of practice heretofore set forth in any statute, not in conflict with any of these rules, shall be deemed to be in effect until superseded by rules adopted by the Supreme Court."

Section 5 of article 7 of the Constitution of 1908 provides:

"The Supreme Court shall by general rules establish, modify and amend the practice in such Court, and in all other courts of record, and simplify the same."

Act No. 377, Pub. Acts 1927, provided the governor should appoint a commission of five practicing attorneys at law to confer with the justices of the Supreme Court and suggest to such court revised rules of practice and procedure in such court, and in all other courts of record and a simplified method of appellate procedure.

Michigan Court Rule No. 33, adopted by the Supreme Court, effective January 1, 1931, provides:

"A party desirous of a trial by jury shall make his demand for a jury in writing, and file such demand with the clerk and serve copy thereof upon counsel for opposite party within fifteen days after the issue is joined in the cause; otherwise he shall be deemed to have waived his right to a jury."

This rule was adopted in pursuance of the constitutional authority vested in the court as above indicated. It was suggested by the commission appointed by the governor under Act No. 377, Pub. Acts 1927. No demand for a jury was filed under old Circuit, Court Rule No. 39, and no demand for a jury was attempted to be filed under Michigan Court Rule No. 33, until more than 15 days after the effective date of Rule No. 33. The question involved is one of procedure. Michigan Court Rule No. 33 governs. Demand for a jury trial was not made within 15 days after the effective date of the Michigan Court Rules and by the terms of Rule No. 33 by not making such demand within the time fixed thereby the plaintiff waived her right to trial by jury. Judgment should be affirmed, but without costs.

BUTZEL, C.J., and WIEST, J., concurred with POTTER, J.