WOOD ET AL.
v.
WARRINER
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Wood and others appealed a judgment awarding a real estate commission to the plaintiff, challenging the trial court's grant of the plaintiff's last-minute demand for a jury trial despite neither party requesting one initially. The Florida Supreme Court affirmed, holding that a party's demand for jury trial, even if made after the deadline specified in the rules, is within the trial court's discretion to grant.
The trial court did not abuse its discretion in granting the plaintiff's demand for a jury trial made after the deadline specified in the rules. A party has the right to claim a jury trial, and when the claim comes after the time specified in the rule, the trial court has discretion to grant or deny the request.
“In promulgating the rule there was no purpose to deprive anyone of a jury trial, even if possible. In fact, there was no intent to coerce a litigant to relinquish his right to trial by jury. When the right is claimed the court has no alternative. If the claim comes after the time specified in the rule, the usual discretion is allowed the trial court in the matter.”
Establishes the governing legal principle that the right to jury trial is not forfeited by missing the deadline, and trial courts have discretion to grant late demands.
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Join FLexlaw to unlock all legal intelligenceThe case involved a suit to recover a real estate commission. Neither the plaintiff nor defendants requested a jury trial in their pleadings. On the d…
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DREW, Justice.
This is an appeal from a final judgment in favor of the plaintiff in a suit to recover a real estate commission.
Neither the plaintiff in her complaint nor the defendants in their answer below requested a jury trial. On the day of the trial, however, the plaintiff demanded trial by jury and the lower court granted such demand over the objection of the defendants. The granting of such demand is assigned as error. In the case of Messana v. MaulE Industries, Inc., Fla., 50 So. 2d 874, 876, we construed 30 F.S.A.Rules of Common Law,. Rule 31, of this Court relating to demands, for jury trial, and in that case said:
" * * * In promulgating the rule there was no purpose to deprive anyone of a jury trial, even if possible. In fact, there was no-intent to coerce a litigant to relinquish his right t© trial by jury. When the right is claimed the-court has no alternative. If the claim comes after the time specified in the rule, the usual discretion is allowed the trial court in the matter. * * * ” (Emphasis supplied.)
The above language was quoted and approved in the later case of Fountain of Youth Broadcasting Co. v. Church, Fla., 51 So. 2d 728.
While the defendants objected at the time-to the action of the Court in granting a jury-trial, no application was made for a continuance and the cause proceeded to trial. Under the circumstances shown by the record the trial court did not abuse the discretion vested in him in granting plaintiff’s motion for a jury trial.
The appellants urge that new Rule 31,. which became effective June 1, 1952 (after the disposition of this case in the lower court), was a clarifying amendment and was intended to state specifically what the Rule meant all the while, and therefore the lower court was powerless to grant such request without the consent of both parties. This argument is untenable in view of the above quoted decisions of this Court construing the Rule.
The other assignments of error have been carefully considered. We find in them no basis for a reversal of the judgment complained of.
Affirmed.
HOBSON, C. J., and TERRELL, ROBERTS and MATHEWS, JJ., concur. THOMAS and SEBRING, JJ., not participating.
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Citator
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In re Amendments to the Florida Rules of Civil Procedure, 604 So. 2d 1110 (Fla. 1992)
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In re THE Fla. BAR: Rules of Civil Procedure, 265 So. 2d 21 (Fla. 1972)…a trial by jury on its own motion. A demand for trial by jury may not be withdrawn without the consent of the parties. Committee Note 1972 Amendment. The subdivision is amended to conform to the decisions construing it. See Wood v. Warriner, Fla., 62 So. 2d 728; Bittner v. Walsh, Fla.App., 132 So. 2d 799 and Shores v. Murphy, Fla., 88 So. 2d 294. It is not intended to overrule Wertman v. Tipping, Fla.App., 166 So. 2d 666, that requires a moving party to show justice requires a jury. RULE 1.440. SETTING CA…
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Shores v. Ida Murphy and her husband, 88 So. 2d 294 (Fla. 1956)…ts from many of the hard and fast technical procedural restrictions of the common law. Messana v. Maule Industries, Inc., Fla.1951, 50 So. 2d 874; Fountain of Youth Broadcasting Co. v. Church, Fla.1951, 51 So. 2d 728. In Wood v. Warriner, Fla.1953, 62 So. 2d 728, we held that under former Common Law Rule 31, even though jury trial had not been demanded in the complaint or answer, the trial judge did not abuse his discretion by granting a motion for a jury trial filed by the plaintiff on the day of the trial…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Messana v. Maule Indus., 50 So. 2d 874 (Fla. 1951)