Mr. PRESIDING JUSTICE STAMOS
delivered the opinion of the court:
Plaintiffs, Donald Smith and Harold Gluff, filed an action at law against defendant Realcoa Construction Co. for compensation for services rendered. After a bench trial judgment was entered in favor of plaintiffs in the amount of $230. Plaintiffs appeal from this judgment, and raise these issues for our review:
1. Whether the trial court improperly refused plaintiffs’ request for a jury after defendant waived its demand;
2. Whether the trial court improperly permitted the testimony of a defense witness whose name was omitted from defendant’s answers to interrogatories; and
3. Whether the decision of the trial court is against the manifest weight of the evidence.
The record indicates that plaintiff Donald Smith was a self-employed excavator. In May, 1964 he was recommended by his brother, Harold Smith, for a job on defendant’s Shires subdivision in Des Plaines. Harold Smith was at that time defendant’s construction superintendent on the Shires project. On May 7, 1964 plaintiff Smith entered into an oral contract with Earl Rosin, defendant’s agent in charge of the Shires subdivision. Plaintiff was hired to excavate and grade, and was to receive an agreed-upon hourly rate for the grading work. In July and August of 1964 plaintiffs were paid a total of $1801 and at trial it was shown that an additional $91 had been paid. Therefore, the sum in controversy at trial was $6349.25. Defendant based its defense on (1) improper work by plaintiffs requiring grading to be redone by third parties hired by defendant and (2) improper billing for time during which plaintiffs’ equipment was inoperative. Defendant admitted owing plaintiffs $230 for excavating and back-filling work.
At trial, both plaintiffs testified that their tractor and dump truck had not been idle and that they had received no complaints regarding their grading work while they were on the job. Harold Gluff testified that he was hired by Donald Smith in mid-July, and remained on the job until August 18, that his equipment consisted of a tractor for grading and a dump truck, and that he could not read grading plans very well. Donald Smith testified that he visited the work site approximately 3-4 hours per week, and each of his machine operators kept his own time record. He therefore was not able to testify from his personal knowledge regarding the idle time of his employees or of their equipment. He also testified that he had no recollection of seeing defendant’s grading plan at the site, and that he could not recall the substance of any of his conversations with Ted Paige who replaced Harold Smith as superintendent in mid-July, 1964. Harold Smith testified that the grading plan, “Defendant’s Exhibit #1,” may have been at the site, that his job as superintendent included signing work authorizations before payment could be made for properly done work, and that on one occasion he had signed an authorization for an improperly done grading job which Donald Smith was obliged to regrade.
Earl Rosin, the president of defendant corporation, testified that he visited the job site, and in June of 1964 he advised Harold Smith that the grading was improper. In late July or August, he discussed the problem with Donald Smith who assured him that the work would be done properly. Three former employees of defendant testified that they observed improper grading on the site, and that plaintiffs’ equipment wás inoperative. Paige, the superintendent at the site from the first week in July until early 1965 testified that he went over the grading plan with Donald Smith, but subsequently he had to summon another contractor to regrade a portion of the land; Harold Gluff could not redd the grading because his tractor was inoperative. Paige declined to sign work authorizations for improperly graded work and also for time when the machines were inoperative. He also testified that Gluff devoted too much time to moving dirt with his dump truck. Phillip Sacks, an assistant superintendent, testified that the tractor and dump truck were idle through July and August The final witness to testify regarding the improper grading was Michael Rothbard who observed the work at the site and handled defendant’s billing. He also stated that from July 14 to August 19, the tractor was idle, but that on two occasions the dump truck was used and those bills were paid.
The trial court made a finding that the grading was not done in a workmanlike manner. The court found that plaintiffs endeavored to do the work, but could not adequately perform, and therefore plaintiffs were properly refused payment. The court entered a judgment for plaintiffs in the amount of $230 based on the admission of defendant of that amount owed plaintiffs.
OPINION
Plaintiffs first contend that they should have been allowed to demand a jury trial after defendant waived its jury demand immediately prior to the commencement of the trial. The trial court denied their request on the grounds that they had not complied with section 64 of the Civil Practice Act, and since the parties were ready for trial, there was no reason for further delay. Plaintiffs maintain that they did not request a jury at the time of filing their complaint because of the additional two year delay before the case would be set for a jury trial. Therefore, they argue that because they had waited through the delay, they should have been entitled to a jury trial. Defendant contends that the clear and unambiguous provisions of section 64 were not complied with, and plaintiffs have shown no injury.
Section 64 of the Civil Practice Act1 provides in part:
“(1) A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his answer. Otherwise, the party waives a jury * *
A trial judge exercises discretion in extending or refusing to extend time for filing a jury demand, and each case must be judged on its own facts. (Dawson v. Maxwell, 13 Ill.App.2d 228, 141 N.E.2d 6.42.) The right to a trial by jury may be reasonably regulated, but restrictions should be liberally construed in favor of the right, and the inclination . of the court should be to protect and enforce the right. In Hudson v. Leverenz, 10 Ill.2d 87, 92, 139 N.E.2d 255 the court stated:
“However, even though a plaintiff does not file his jury demand at the time suit is commenced,’ or a defendant ‘at the time of filing his appeárance,’ this court has said that the right to have a jury is not necessarily foreclosed. It is held that by reason of section 59 of the Civil Practice Act and Supreme Court Rule 8 (now Rule 183), the trial court may in its discretion and under certain circumstances, extend the time for filing the request for jury trial.” [Citation omitted.]
Section 59 of the Civil Practice Act2 provides in pertinent part:
“On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.”
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Mr. PRESIDING JUSTICE STAMOS
delivered the opinion of the court:
Plaintiffs, Donald Smith and Harold Gluff, filed an action at law against defendant Realcoa Construction Co. for compensation for services rendered. After a bench trial judgment was entered in favor of plaintiffs in the amount of $230. Plaintiffs appeal from this judgment, and raise these issues for our review:
1. Whether the trial court improperly refused plaintiffs’ request for a jury after defendant waived its demand;
2. Whether the trial court improperly permitted the testimony of a defense witness whose name was omitted from defendant’s answers to interrogatories; and
3. Whether the decision of the trial court is against the manifest weight of the evidence.
The record indicates that plaintiff Donald Smith was a self-employed excavator. In May, 1964 he was recommended by his brother, Harold Smith, for a job on defendant’s Shires subdivision in Des Plaines. Harold Smith was at that time defendant’s construction superintendent on the Shires project. On May 7, 1964 plaintiff Smith entered into an oral contract with Earl Rosin, defendant’s agent in charge of the Shires subdivision. Plaintiff was hired to excavate and grade, and was to receive an agreed-upon hourly rate for the grading work. In July and August of 1964 plaintiffs were paid a total of $1801 and at trial it was shown that an additional $91 had been paid. Therefore, the sum in controversy at trial was $6349.25. Defendant based its defense on (1) improper work by plaintiffs requiring grading to be redone by third parties hired by defendant and (2) improper billing for time during which plaintiffs’ equipment was inoperative. Defendant admitted owing plaintiffs $230 for excavating and back-filling work.
At trial, both plaintiffs testified that their tractor and dump truck had not been idle and that they had received no complaints regarding their grading work while they were on the job. Harold Gluff testified that he was hired by Donald Smith in mid-July, and remained on the job until August 18, that his equipment consisted of a tractor for grading and a dump truck, and that he could not read grading plans very well. Donald Smith testified that he visited the work site approximately 3-4 hours per week, and each of his machine operators kept his own time record. He therefore was not able to testify from his personal knowledge regarding the idle time of his employees or of their equipment. He also testified that he had no recollection of seeing defendant’s grading plan at the site, and that he could not recall the substance of any of his conversations with Ted Paige who replaced Harold Smith as superintendent in mid-July, 1964. Harold Smith testified that the grading plan, “Defendant’s Exhibit #1,” may have been at the site, that his job as superintendent included signing work authorizations before payment could be made for properly done work, and that on one occasion he had signed an authorization for an improperly done grading job which Donald Smith was obliged to regrade.
Earl Rosin, the president of defendant corporation, testified that he visited the job site, and in June of 1964 he advised Harold Smith that the grading was improper. In late July or August, he discussed the problem with Donald Smith who assured him that the work would be done properly. Three former employees of defendant testified that they observed improper grading on the site, and that plaintiffs’ equipment wás inoperative. Paige, the superintendent at the site from the first week in July until early 1965 testified that he went over the grading plan with Donald Smith, but subsequently he had to summon another contractor to regrade a portion of the land; Harold Gluff could not redd the grading because his tractor was inoperative. Paige declined to sign work authorizations for improperly graded work and also for time when the machines were inoperative. He also testified that Gluff devoted too much time to moving dirt with his dump truck. Phillip Sacks, an assistant superintendent, testified that the tractor and dump truck were idle through July and August The final witness to testify regarding the improper grading was Michael Rothbard who observed the work at the site and handled defendant’s billing. He also stated that from July 14 to August 19, the tractor was idle, but that on two occasions the dump truck was used and those bills were paid.
The trial court made a finding that the grading was not done in a workmanlike manner. The court found that plaintiffs endeavored to do the work, but could not adequately perform, and therefore plaintiffs were properly refused payment. The court entered a judgment for plaintiffs in the amount of $230 based on the admission of defendant of that amount owed plaintiffs.
OPINION
Plaintiffs first contend that they should have been allowed to demand a jury trial after defendant waived its jury demand immediately prior to the commencement of the trial. The trial court denied their request on the grounds that they had not complied with section 64 of the Civil Practice Act, and since the parties were ready for trial, there was no reason for further delay. Plaintiffs maintain that they did not request a jury at the time of filing their complaint because of the additional two year delay before the case would be set for a jury trial. Therefore, they argue that because they had waited through the delay, they should have been entitled to a jury trial. Defendant contends that the clear and unambiguous provisions of section 64 were not complied with, and plaintiffs have shown no injury.
Section 64 of the Civil Practice Act1 provides in part:
“(1) A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his answer. Otherwise, the party waives a jury * *
A trial judge exercises discretion in extending or refusing to extend time for filing a jury demand, and each case must be judged on its own facts. (Dawson v. Maxwell, 13 Ill.App.2d 228, 141 N.E.2d 6.42.) The right to a trial by jury may be reasonably regulated, but restrictions should be liberally construed in favor of the right, and the inclination . of the court should be to protect and enforce the right. In Hudson v. Leverenz, 10 Ill.2d 87, 92, 139 N.E.2d 255 the court stated:
“However, even though a plaintiff does not file his jury demand at the time suit is commenced,’ or a defendant ‘at the time of filing his appeárance,’ this court has said that the right to have a jury is not necessarily foreclosed. It is held that by reason of section 59 of the Civil Practice Act and Supreme Court Rule 8 (now Rule 183), the trial court may in its discretion and under certain circumstances, extend the time for filing the request for jury trial.” [Citation omitted.]
Section 59 of the Civil Practice Act2 provides in pertinent part:
“On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.”
Supreme Court Rule 183 3 provides:
“The court, for good cause shown on motion after notice to the opposing party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time.”
Plaintiffs argue that it is grossly unfair that they were made to wait 5 years for a jury trial, and at the last moment to be denied a jury trial because of defendant’s waiver. However, there is no unfairness where plaintiffs, who were in full control of their litigation at the time they commenced their suit, decided not to demand a jury, and in the end, did not have a jury trial. Their reliance on a jury trial came after the fact— after they made their decision not to demand a jury.
It can be argued that section 64 provides relief for defendants who rely on plaintiffs’ jury demands which are then waived, and that this court should provide such relief for plaintiffs'in the same situations. However, a defendant who is brought into a suit after a plaintiff has filed a demand has no opportunity to make his choice regarding a jury trial, and section 64 allows him to make this initial choice when the plaintiff waives. In the instant case, however, plaintiffs had an initial choice and exercised it, and therefore, plaintiffs’ situation is not analogous to the situation provided for in section 64.
It is also argued that a jury trial in this case would not have inconvenienced either party, and therefore, should have been granted. However, to grant plaintiffs a jury trial would destroy the systematic order of procedure for which section 64 provides. The time limitations would no longer be needed, and certainly the purpose of section 64 would be changed. We recognize that time limitations must not be ends in themselves, but in this case they must be applied absent á showing of “good cause.” Plaintiffs have not shown “good cause” as would support an extension of 5 years in which to demand a jury. (Schwartz v. Lake View Tool & Manufacturing Co., 4 Ill.App.2d 565, 124 N.E.2d 570.) Therefore the trial court did not err in denying plaintiffs’ request for a jury trial.
Secondly, plaintiffs contend that the court erred in permitting Phillip Sacks to testify since he was not listed on defendant’s answers to interrogatories.
The court heard argument and held that Sacks could testify because plaintiffs could not show that, at the time defendant answered the interrogatories, it was aware that Sacks had knowledge of facts concerning this case. Plaintiffs argue that Sacks was hired by defendant and defendant knew he worked on the Shires project. The fact that defendant’s counsel knew nothing of Sacks until one day before trial is irrelevant. Defendant maintains that Sacks reported to Paige, and both Sacks and Paige left defendant’s employ before the answers to the interrogatories were filed.
An interrogatory is directed to the actual knowledge and information available to both counsel and litigant. (Battershell v. Bowman Dairy Co., 37 Ill.App.2d 193, 185 N.E.2d 340.) The interrogatories in the present case requested the names of persons who may have had knowledge of the facts of plaintiffs’ complaint or defendant’s answer. Sacks was employed as assistant superintendent on the Shires job, and thus defendant obviously knew that he was on that job during the time plaintiffs were employed. Therefore, defendant must have known that Sacks had some knowledge concerning the cause of action. Defendant’s failure to list Sack’s name in its answers to the interrogatories must be treated as noncompliance with the discovery order.
Where a party offers testimony of a person not listed on an interrogatory, the trial court has power to exclude the witness in its discretion, but exclusion is not mandatory. The trial court has the duty to ascertain the type of witness and content of the evidence, good faith of the party calling the witness, and degree of surprise and prejudice to the other party, including prior knowledge of the witness by the other party. Wright v. Royse, 43 Ill.App.2d 267, 193 N.E.2d 340; Buckler v. Sinclair Refining Co., 68 Ill.App.2d 283, 216 N.E.2d 14.
When Sacks was called as a witness, plaintiffs did not ask for a continuance, and the sole relief requested was exclusion of his testimony. Although defendant’s counsel failed to notify plaintiffs when he became aware of Sacks’ knowledge, there was no showing of bad faith or concealment by defendant, or of prejudice to the plaintiffs. Plaintiffs also knew that Sacks was on the job while they were employed there. (Frozen Foods Express v. Modern Truck Lines, Inc., 79 Ill.App.2d 84, 223 N.E.2d 275.) Therefore, the trial court did not abuse its discretion in allowing the witness to testify. In any event, the testimony would not be reversible error since the court correctly stated that Sacks’ testimony was merely cumulative. Granger v. Turley, 20 Ill.App.2d 488, 158 N.E.2d 610.
Lastly, plaintiffs contend that the finding by the trial court is contrary to the manifest weight of the evidence.
A trial judge who sees the witnesses and hears the evidence is in a much superior position to find the truth than is a reviewing court. The weight to be given testimony and credibility of witnesses are matters within the trial judge’s province. A trial judge’s finding will not be disturbed unless plainly erroneous and against the manifest weight of the evidence. Johnson v. Fischer, 108 Ill.App.2d 433, 247 N.E.2d 805.
Our review of the record indicates that the evidence supports the judgment of the trial court. Three disinterested former employees of defendant testified that plaintiffs’ grading work was improperly done and that their equipment was inoperative for periods of time during which plaintiffs billed defendant. We note some inconsistencies regarding the dates and length of time during which the tractor was idle and the dump truck was utilized. However, these inconsistencies do not affect the overall credibility of these witnesses who agreed that plaintiffs did not perform properly and that their machinery was idle.
Therefore, for the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.
LEIGHTON, J„ concurs.