May v. Melvin

D.C. Circuit

May v. Melvin

141 F.2d 22, 78 U.S. App. D.C. 368, 1944 U.S. App. LEXIS 3589

CourtCourt of Appeals for the D.C. Circuit

DecidedMarch 6, 1944

DocketNo. 8538

StatusPublished

Cited by10 cases

This text of 141 F.2d 22 (May v. Melvin) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

May v. Melvin, 141 F.2d 22, 78 U.S. App. D.C. 368, 1944 U.S. App. LEXIS 3589 (D.C. Cir. 1944).

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Opinion

EDGERTON, Associate Justice.

In a suit for alienation of affections the District Court, sitting without a jury, gave judgment to the defendant and the plaintiff appeals. Appellant complains that she was denied a jury trial. But she failed to demand one, as Federal Rules of Civil Procedure, rule 38(b), 28 U.S.C.A. following section 723c, requires, within ten days after the service of the last pleading directed to the issue. The last pleading, appellee’s answer, was served on July IS, 1941. Appellant’s demand for a jury was first made at pretrial, in November 1942.

By the express terms of Rule 38(d), a jury had long since been waived.¹ Appellant offered no excuse except the “inadvertence” of former counsel. Though the court might, in its discretion, have ordered a jury trial, it was under no obligation to do so.² Since Rule 38(b) explicitly measures delay from “the service of the last pleading,” there is no merit in appellant’s contention that there is no “issue” within the meaning of the rule until pretrial.

Appellant contends that the trial court based its decision on the absence of illicit relations, and failed to recognize that appellant’s loss of her husband’s companionship was the gist of the action. We think the court rightly based its decision on the fact that appellant failed to establish any wrongful conduct on the part of appellee, or any conduct which caused appellant’s loss.³

Affirmed.

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EDGERTON, Associate Justice.

In a suit for alienation of affections the District Court, sitting without a jury, gave judgment to the defendant and the plaintiff appeals. Appellant complains that she was denied a jury trial. But she failed to demand one, as Federal Rules of Civil Procedure, rule 38(b), 28 U.S.C.A. following section 723c, requires, within ten days after the service of the last pleading directed to the issue. The last pleading, appellee’s answer, was served on July IS, 1941. Appellant’s demand for a jury was first made at pretrial, in November 1942.

By the express terms of Rule 38(d), a jury had long since been waived.¹ Appellant offered no excuse except the “inadvertence” of former counsel. Though the court might, in its discretion, have ordered a jury trial, it was under no obligation to do so.² Since Rule 38(b) explicitly measures delay from “the service of the last pleading,” there is no merit in appellant’s contention that there is no “issue” within the meaning of the rule until pretrial.

Appellant contends that the trial court based its decision on the absence of illicit relations, and failed to recognize that appellant’s loss of her husband’s companionship was the gist of the action. We think the court rightly based its decision on the fact that appellant failed to establish any wrongful conduct on the part of appellee, or any conduct which caused appellant’s loss.³

Affirmed.

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Bluebook (online)

141 F.2d 22, 78 U.S. App. D.C. 368, 1944 U.S. App. LEXIS 3589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/may-v-melvin-cadc-1944.

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