Show HAD HAfl RIGHT TO A JURY I Supreme Court Reverses R Judge I L i Ch Cherry 1 us IS ISSUED 4 t pIS Q COURT RULE DEOLAR DECLARED ED VOID I t Must Not Interfere With a Litigants Eight Hight to a Trial By Jury Jur Jur Even if He Be Did Not Demand it Until the tha Moment Before the tha Suit Was to toBe toBe I IBe Be Tried 4 I Attorneys and litigants generally will be interested in a of the I Ip p emo court handed down yester yesterday day dy Chief Justlee Justice Bartch who writes th opinion lays down iOwn the law to tor r J Cherry of the district court He Ws in so o far tv as rule 9 of the din dis district II triot court imposes Imp ea limitations and re i as the right of trial byj by i jury not imposed by statute stat ute it is null nulland I and ADd nd void Th The title till of the case cue is la State of Utah I ass ex rel rei George Nichols plaintiff vs A AN AN I N Cherry judge of or the Third judicial I II I court in and for Salt Lake county I state of ot Utah Utah and Is te a 8 proceeding in I mandamus original in the supreme court urt Briefly Briedy it is the tha outcome of ot a asuit asuit suit that was brought by George Georgef Nichols through his attorneys s Fer For Ferguson f guson Cannon against the Oregon Short Line for damages in the amount of 9 which Nichols claims for alleged carelessness s on the pert part of the ther I railroad r company in failing to have oars on time at Soda Sod Springs Ida to ship head of sheep to Omaha Om ba The plaintiff orally in open court at atthe r th the time of oZ the setting of ot the case cae for tor trial demanded a jury and paid the sum of 5 required by the law lw as jury I fees receiving the clerks receipt there for Rule 9 of the court requires that the fee be paid and the demand for a atrial trial be made five days before com corn commencement mel ma cement cement of the term of ot court in which it is desired that toot the case is i to tobe tobe tobe be tried Judge Cherry announced that the case would be tried without a jury An alternative writ of ot mandate was wu Issued 1 and the defendant filed a lIe de dc demurrer 1 to the petition on the ground that it did not state a cause of action The rho matter was wan argued and submitted for decision on the merits The principal question sold id the supreme court Is whether the plain plaintiff plaintiff tiff in the action before the district court waived a jury jUl The defendant insists and the court so held that un under under der clot the provisions of ot the constitution and statute of ot this state relating to such a case and the rule rul of the dis district district district court the plaintiff waived his hie right to a 8 jury The Tha plaintiff maintains that the statute and rule of ot the court upon this subject are in ill conflict oo with the constitution but that even if the statute is in harmony with that in instrument Instrument instrument strument he has complied compiLed with both the statutory and constitutional pro provisions provisions O visions in his hia demand for trial by jury Section 10 article 1 of the constitution constitution Lotion provides that a jury JUT in civil cases shall be waived unless demand demanded ed The command is sims sl sImply ly that it shall be waived unless demanded therefore the question as to how bow and where such h demand shall l be beina ina is within the province of the legislature to determine because upon any subject t as to which Wirich w ch there is 18 no constitutional restraint or as to which the paramount law does not speak the legislature may legislate late lateOn On this point the th legislature lisa has provided that either party to an action of the kind who desires a jury trial must demand it either by written no notice notice tice to the clerk prior to the time of setting such action for trial or within such uch reasonable reas time thereafter as the court may order or orally in open court at the tho time of setting and must at the same time deposit with the clerk the sum of 6 i whereupon it Its shall s ll be the duty dot of or o the tile court to or order order order der jurors to be tn attendance at t the time set for the trial of the cause cau e Money paid in accordance acco with this section shall be taxable as costs in the action But the failure of or a party who has bas demanded a jury to appear at the trial shall sh lI be deemed a waiver of or such demand If no demand be so made in writ writIng writIng Ing log or orally or if a party who has made demand properly fall fail to appear at the trial there will be a waiver of the jury The trial by a jury of a civil case at law le Is a n personal privilege lege loge which either of ot the litigants may or not at will The court is of the lh opinion that the plaintiff properly exercised ed lila his privilege to have the case tried before a jury and a peremptory writ of ot man mandate mandate date must therefore issue commanding the defendant de to grant a trial by jury Justices Tu Uces Miner and Baskin Ba concur Q ca |