LEWIS E. BLACKBURN, APPELLANT,
v.
J. FRANK BLACKBURN, APPELLEE
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A party in a replevin action is entitled to a jury trial if they timely demand it and do not waive the right.
Appellant demanded a jury trial in his answer and counterclaim in a replevin action. The trial court denied the demand, conducted a nonjury trial, and…
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SCHEB, Chief Judge.
J. Frank Blackburn filed an action for replevin against appellant Lewis E. Blackburn. Appellant filed his answer and counterclaim incorporating a demand for jury trial. He renewed the demand at pretrial conference. The court, nevertheless, denied the demand, conducted a nonjury trial and entered final judgment for Frank Blackburn. In this appeal the appellant challenges the trial court’s denial of his demand for jury trial.
A litigant has a right to a jury trial when the issue presented in a case would have been heard at common, law. Carney v. Stringfellow, 73 Fla. 700, 74 So. 866 (1917); see Dudley v. Harrison, McCready & Co., 127 Fla. 687, 173 So. 820 (1937); In re U. S. Financial Services Litigation, 609 F. 2d 411 (9th Cir.1979). Replevin was a common-law action. Three States Lumber Co. v. Blanks, 133 F. 479 (6th Cir. 1904); Road Material and Equipment Co. v. McGowan, 229 Miss. 611, 91 So. 2d 554 (1956). Consequently, a party in a replevin action is entitled to a jury trial as long as he timely demands it and does not waive the right. Fla.R.Civ.P. 1.430.
Here, appellant filed a timely demand under rule 1.430(b) for a jury trial in his answer and counterclaim. Further, the record does not indicate that he ever waived that right. Accordingly, we reverse and remand for a jury trial on all issues triable by jury.
GRIMES and CAMPBELL, JJ., concur.
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Citator
Cited By
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Adkins v. Winkler, 592 So. 2d 357 (Fla. 1st DCA 1992)…e issues. See Powell v. Southern Bell Tel. & Tel. Co., 448 So. 2d 72 (Fla. 3d DCA 1984) (demand for jury trial made at conclusion of amended counterclaim was sufficient, although counterclaim was later found to be a nullity); Blackburn v. Blackburn, 393 So. 2d 51 (Fla. 2d DCA 1981) (demand for jury trial was timely made in answer and counterclaim). Moreover, the record contains no evidence that appellant ever waived his previously claimed right to jury trial and, in fact, his subsequent filing of a demand th…1 / 2
Authorities Cited
- Carney v. Stringfellow, 73 Fla. 700 (Fla. 1917)
- Dudley v. Harrison, 127 Fla. 687 (Fla. 1937)
- In re U. S. Fin. Sec. Litig. Michael Fabrikant & Milton Binswanger v. Bache & Co., 609 F.2d 411 (9th Cir. 1979)