Blackburn v. Blackburn

District Court of Appeal of Florida

Blackburn v. Blackburn

393 So. 2d 51, 1981 Fla. App. LEXIS 18722

District Court of Appeal of Florida·Decided January 30, 1981·No. No. 80-231·Published·Cited by 1 cases

Opinion

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 [52]*52entered 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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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 [52]*52entered 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.

Blackburn v. Blackburn, 393 So. 2d 51, 1981 Fla. App. LEXIS 18722 (Fla. Ct. App. 1981).

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