Meyer v. Henery

400 S.W.2d 933, 1966 Tex. App. LEXIS 2712

• Court: Court of Appeals of Texas
• Decided: March 9, 1966
• Docket: 11373
• Status: Published

Opinions

ARCHER, Chief Justice.

This is an appeal from the action of the judge of the County Court at Law No. 2 of Travis County, Texas, in disregarding the demand for a jury trial, and in- rendering a default judgment.

The appellant was the defendant in a civil action in the court and had seasonably demanded a jury and had paid the jury fee, and had not waived a trial with a jury.

The trial judge without hearing evidence and on the basis of the pleadings rendered judgment for the plaintiff for $198.93, $68.93 the amount of a check and $130.00 as attorney’s fee.

The judgment recited that the verified pleadings of the plaintiff were considered, and that there were no verified pleadings by defendant, and that all parties waived demand for a jury.

Appellant in his motion to set aside and vacate the judgment, alleged the demand for and payment of a jury fee and that such jury demand had not been waived. This motion was overruled.

The court erred in disregarding the demand for a jury trial, and was without authority to enter the judgment.

The right of trial by jury is guaranteed by the Texas Constitution, Sec. 15, Art. 1, Vernon’s Ann.St. Rule 216, Texas Rules of Civil Procedure. Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428; Barker v. Kidd, Tex.Civ.App., 357 S.W.2d 490, n. w. h.; Sec. 17.9, Appellate Procedure in Texas.

The judgment of the trial court is reversed and the cause remanded.