Shankle v. Shankle , 23 N.C. App. 692 ( 1974 )

PARKER, Judge.

The principle of the right to trial by jury is basic to our system of jurisprudence and need not be reviewed here. “[T]rial hy jury is one of the best securities of the rights of the people,, and shall remain sacred and inviolable.” N. C. Const., art. 1, § 25. Prior to the adoption of the Rules of Civil Procedure a party could waive that right by written consent, oral consent entered in the minutes, or by failing to appear. Rule 38 added a fourth method of waiver, failing to serve a demand on the other parties within ten days after service of the last pleading directed to the issue. The last method “. . . has as its object the early ascertainment of those cases in which there will be no jury. This knowledge is useful in calendaring a case and in counsel’s preparation for trial.” Comment, G.S. 1A-1, Rule 38,. at p. 665.

Here the record discloses that both parties requested a trial by jury and their requests were set out in the order of the-Clerk of Superior Court. Moreover, notwithstanding the failure-of a party to demand a jury trial, the court in its discretion upon motion or of its own initiative may order a jury trial on any issue. G.S. 1A-1, Rule 39 (b).

In view of the particular background of this case, which started as a special proceeding before the Clerk, where all parties requested a jury trial almost two years prior to the time the case was called for trial, and where these requests were set out in the Clerk’s written order transferring the case to the civil issue docket for trial, we are of the opinion that the ends of justice will best be served by directing that the judgment be vacated and the case remanded for trial by jury.

The judgment from which respondents appeal is vacated and the case is remanded for trial by jury.

Vacated and remanded.

Judges Campbell and Vaughn concur.