Laws v. Laws

Court of Appeals of North Carolina

Laws v. Laws

206 S.E.2d 324, 22 N.C. App. 344, 1974 N.C. App. LEXIS 2325

CourtCourt of Appeals of North Carolina

DecidedJuly 3, 1974

DocketNo. 7427DC489

StatusPublished

This text of 206 S.E.2d 324 (Laws v. Laws) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Laws v. Laws, 206 S.E.2d 324, 22 N.C. App. 344, 1974 N.C. App. LEXIS 2325 (N.C. Ct. App. 1974).

Pincite

Opinion

VAUGHN, Judge.

Defendant contends that the court erred in denying defendant’s motion for a jury trial.

In 1969, when this action was commenced, the parties, by virtue of G.S. 50-10, waived their right to a jury trial in absolute divorce actions based on a one-year separation unless a party filed “a request for a jury trial with the clerk of the court in which the action [was] pending, prior to the call of the action for trial.” (Emphasis added.) As a result of an amendment, effective 11 May 1973, G.S. 50-10 now provides that “[t]he determination of whether there is to be a jury trial . . . shall be made in accordance with G.S. 1A-1, Rules 38 and 39.” (Emphasis added.) G.S. 1A-1, Rule 38 requires a party to serve a demand for a jury trial upon the other party “at any time after the commencement of the action and not later than 10 days after the service of the last pleading....”

[346]*346In Branch v. Branch, 282 N.C. 133, 191 S.E. 2d 671, the Supreme Court was confronted with a case somewhat similar to this one. There, the issue was the effect of a 1971 amendment to G.S. 50-10 which provided that the right to a jury trial in actions for divorce after a one-year separation was not preserved unless one of the parties filed “a demand for a jury trial with the clerk of court in which the action is pending, as provided in the Buies of Civil Procedure.” (Emphasis added.) The Court held, in effect, that the 1971 amendment to G.S. 50-10 did not alter the procedure for securing a jury trial in actions for absolute divorce after a one-year separation where an answer had been filed at least 10 days prior to the effective date of the amendment. The court said “on and after 19 February, 1971, the effective date of the 1971 amendment, it was impossible for defendant to demand a jury trial ‘as provided in the Rules of Civil Procedure.’ ”

The substance of the 1973 amendment to G.S. 50-10 is very similar to that of the 1971 amendment, and the defendant in this case like the defendant in Branch filed an answer more than 10 days before the effective date of the amendment involved. For the reasons stated in Branch, the judgment is reversed and the case is remanded for trial by jury.

Reversed and remanded.

Judges Morris and Baley concur.

Free access — add to your briefcase to read the full text and ask questions with AI

VAUGHN, Judge.

Defendant contends that the court erred in denying defendant’s motion for a jury trial.

In 1969, when this action was commenced, the parties, by virtue of G.S. 50-10, waived their right to a jury trial in absolute divorce actions based on a one-year separation unless a party filed “a request for a jury trial with the clerk of the court in which the action [was] pending, prior to the call of the action for trial.” (Emphasis added.) As a result of an amendment, effective 11 May 1973, G.S. 50-10 now provides that “[t]he determination of whether there is to be a jury trial . . . shall be made in accordance with G.S. 1A-1, Rules 38 and 39.” (Emphasis added.) G.S. 1A-1, Rule 38 requires a party to serve a demand for a jury trial upon the other party “at any time after the commencement of the action and not later than 10 days after the service of the last pleading....”

[346]*346In Branch v. Branch, 282 N.C. 133, 191 S.E. 2d 671, the Supreme Court was confronted with a case somewhat similar to this one. There, the issue was the effect of a 1971 amendment to G.S. 50-10 which provided that the right to a jury trial in actions for divorce after a one-year separation was not preserved unless one of the parties filed “a demand for a jury trial with the clerk of court in which the action is pending, as provided in the Buies of Civil Procedure.” (Emphasis added.) The Court held, in effect, that the 1971 amendment to G.S. 50-10 did not alter the procedure for securing a jury trial in actions for absolute divorce after a one-year separation where an answer had been filed at least 10 days prior to the effective date of the amendment. The court said “on and after 19 February, 1971, the effective date of the 1971 amendment, it was impossible for defendant to demand a jury trial ‘as provided in the Rules of Civil Procedure.’ ”

The substance of the 1973 amendment to G.S. 50-10 is very similar to that of the 1971 amendment, and the defendant in this case like the defendant in Branch filed an answer more than 10 days before the effective date of the amendment involved. For the reasons stated in Branch, the judgment is reversed and the case is remanded for trial by jury.

Reversed and remanded.

Judges Morris and Baley concur.

Cite This Page — Counsel Stack

Bluebook (online)

206 S.E.2d 324, 22 N.C. App. 344, 1974 N.C. App. LEXIS 2325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laws-v-laws-ncctapp-1974.

Opinion

Related

Cite This Page — Counsel Stack