MATHERNE, Judge.
In this condemnation lawsuit the determinative issues on appeal are whether the trial judge can of his own motion in a civil law case impanel a jury to try the issues and whether a jury so impaneled is an “advisory jury.”
By plea filed on April 17, 1974, the defendants demanded a jury to hear this lawsuit. Thereafter the parties presented to the trial court an agreed order wherein all parties waived a jury trial and agreed that the lawsuit would be tried before the judge without a jury. The trial judge refused to sign the order and impaneled a jury to hear the issues.
The record does not reveal an objection or exception by the defendants to the ruling of the trial judge that the issues would be submitted to a jury. We hold, however, that under Rule 46, Tennessee Rules of Civil Procedure, an objection at that point was not necessary. At the time the motion was tendered and the action of the trial judge was sought, both parties made known to the judge the action desired on the motion, namely, to waive the jury. The defendants made this ruling by the trial judge the basis of Ground VIII of their Motion for New Trial and Assignment of Error No. 1 before this Court. We, therefore, hold that the claimed error is properly before this Court for review.
In his final Memorandum and Order the trial judge stated:
[505]*505(T)he Court makes reference to the fact that on October 24, 1975, all parties submitted a proposed agreed order attempting to waive trial by jury, which proposed order is attached hereto and made a part thereof. However, the Court was of the opinion that a jury should be empaneled to hear this cause and would not enter said proposed order under the authority of Rule 39 of the Tennessee Rules of Civil Procedure. While the Court has not referred to the jury which tried this cause as an “advisory jury,” it being the Court’s intention not to (in) any way impair any party’s right to appeal, the Court is aware of the language contained in Rules 39.02 and 39.03 of the Tennessee Rules of Civil Procedure. Further, the Court is of the firm opinion, as thirteenth juror, that either a new trial should be granted or the additur should be accepted and paid.
Accordingly, it is therefore Ordered, Adjudged and Decreed that the motion for a new trial as amended be and the same hereby is overruled; however, the Court, as thirteenth juror, suggests an additur . . . the Court being of the firm opinion that the verdict of the jury was inadequate and that, if the Nine Thousand Dollars ($9,000.00) is not paid as an additur as suggested, a new trial should be granted. (Emphases added)
The trial judge apparently misinterpreted Rule 39.02. That rule places within the discretion of the trial judge, upon motion by a party, the power to grant a jury trial even though the moving party had not made a timely demand for a jury as required by Rule 38.
Trial by jury had been demanded by the defendants in accordance with Rule 38.02. Where the demand for jury trial has been properly made the trial of all issues so demanded shall be by jury, “unless (a) the parties or their attorneys of record, by written stipulation filed with the court or by oral stipulation made in open court and entered [of] record, consent to trial by the court sitting without a jury . . . .” Rule 39.01. In this lawsuit the parties, after a demand for trial by jury, did so consent to trial by the court sitting without a jury.
In situations which give a party the right to trial by jury, the Tennessee Rules of Civil Procedure do not give the trial judge the authority to force a jury upon the parties. The right to demand a jury is given to the parties, Rules 38.02, 38.03; the waiver of a jury may be effected by the failure of a party to demand, Rule 38.05; the right to waive a jury previously demanded may be accomplished only by the consent of all parties as to whom issues have been joined, Rule 38.05; when a jury is properly demanded the trial will be by jury unless consent to a non-jury trial be made by all parties and entered of record, Rule 39.01; where a party who has .not timely demanded a jury makes a motion for a jury trial, the trial judge in his discretion may grant that party a jury trial, Rule 39.02. There is no provision which permits the trial judge to impanel a jury on his own motion; there must be a demand by a party. Compare: 5 Moore’s Federal Practice (2nd Ed.) § 39.08; Hargrove v. American Central Ins. Co., 125 F.2d 225 (10th Cir. 1942); Firemen’s Insurance Co. of Newark v. Smith, 180 F.2d 371 (8th Cir. 1950). See also the cases annotated at 6 A.L.R. Federal 217, 230-232.
The leading case to the contrary seems to be United Press Associations v. Charles, 245 F.2d 21, 17 Alaska 46 (9th Cir. 1957), cert. denied, 354 U.S. 925, 77 S.Ct. 1378, 1 L.Ed.2d 1435, wherein the parties failed to demand trial by jury within the time allowed by Rule 38. Thereafter the defendant filed a motion for a jury trial, which was denied. Several months later on the day of trial, the trial judge announced that he would impanel a jury to hear the case. The plaintiff objected, but proceeded to trial. The court reasoned that the plaintiff should have refused to go to trial before a jury, suffer judgment against it for failure to prosecute and appeal therefrom. By going to trial the court reasoned that the plaintiff acquiesced in the jury and waived any right it might have had to object. Under the court’s holding, however, that [506]*506course of action by the plaintiff would have been futile on appeal because the court further buttressed its decision with the following language:
In any event, by definition of the Rule, the judge had power to grant trial by jury when Charles (defendant) made a motion therefor. It can hardly be contended the judge lost jurisdiction when the motion by Charles for jury trial was denied. Although the latter was not insisting upon jury trial, he never withdrew the motion. The denial did not change the record. The denial was not unchangeable as a decree of Rhadamanthus. The judge could have set aside the denial and granted a jury on the eve of [the] trial. But, it is objected, he did not so set aside the denial, but granted jury trial sua sponte. If the judge had jurisdiction to set aside the order, he had jurisdiction to grant trial by jury.
In the quoted portion of the opinion the court seems to have based its decision upon the fact that a motion for trial by jury was made by a party, and, therefore, the judge was given jurisdiction to grant the request even though it had been previously denied. Considering the entire opinion in United Press Associations, supra, along with the rather strong dissent, we can not accept that case as authority for the proposition that the court in the instant lawsuit could force the parties to trial by jury. Here we have a timely consent by all parties that the previously demanded trial by jury be waived. That request was in accordance with Rule 39.01(a). The trial judge erred in his failure to honor that consent to a non-jury trial.
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MATHERNE, Judge.
In this condemnation lawsuit the determinative issues on appeal are whether the trial judge can of his own motion in a civil law case impanel a jury to try the issues and whether a jury so impaneled is an “advisory jury.”
By plea filed on April 17, 1974, the defendants demanded a jury to hear this lawsuit. Thereafter the parties presented to the trial court an agreed order wherein all parties waived a jury trial and agreed that the lawsuit would be tried before the judge without a jury. The trial judge refused to sign the order and impaneled a jury to hear the issues.
The record does not reveal an objection or exception by the defendants to the ruling of the trial judge that the issues would be submitted to a jury. We hold, however, that under Rule 46, Tennessee Rules of Civil Procedure, an objection at that point was not necessary. At the time the motion was tendered and the action of the trial judge was sought, both parties made known to the judge the action desired on the motion, namely, to waive the jury. The defendants made this ruling by the trial judge the basis of Ground VIII of their Motion for New Trial and Assignment of Error No. 1 before this Court. We, therefore, hold that the claimed error is properly before this Court for review.
In his final Memorandum and Order the trial judge stated:
[505]*505(T)he Court makes reference to the fact that on October 24, 1975, all parties submitted a proposed agreed order attempting to waive trial by jury, which proposed order is attached hereto and made a part thereof. However, the Court was of the opinion that a jury should be empaneled to hear this cause and would not enter said proposed order under the authority of Rule 39 of the Tennessee Rules of Civil Procedure. While the Court has not referred to the jury which tried this cause as an “advisory jury,” it being the Court’s intention not to (in) any way impair any party’s right to appeal, the Court is aware of the language contained in Rules 39.02 and 39.03 of the Tennessee Rules of Civil Procedure. Further, the Court is of the firm opinion, as thirteenth juror, that either a new trial should be granted or the additur should be accepted and paid.
Accordingly, it is therefore Ordered, Adjudged and Decreed that the motion for a new trial as amended be and the same hereby is overruled; however, the Court, as thirteenth juror, suggests an additur . . . the Court being of the firm opinion that the verdict of the jury was inadequate and that, if the Nine Thousand Dollars ($9,000.00) is not paid as an additur as suggested, a new trial should be granted. (Emphases added)
The trial judge apparently misinterpreted Rule 39.02. That rule places within the discretion of the trial judge, upon motion by a party, the power to grant a jury trial even though the moving party had not made a timely demand for a jury as required by Rule 38.
Trial by jury had been demanded by the defendants in accordance with Rule 38.02. Where the demand for jury trial has been properly made the trial of all issues so demanded shall be by jury, “unless (a) the parties or their attorneys of record, by written stipulation filed with the court or by oral stipulation made in open court and entered [of] record, consent to trial by the court sitting without a jury . . . .” Rule 39.01. In this lawsuit the parties, after a demand for trial by jury, did so consent to trial by the court sitting without a jury.
In situations which give a party the right to trial by jury, the Tennessee Rules of Civil Procedure do not give the trial judge the authority to force a jury upon the parties. The right to demand a jury is given to the parties, Rules 38.02, 38.03; the waiver of a jury may be effected by the failure of a party to demand, Rule 38.05; the right to waive a jury previously demanded may be accomplished only by the consent of all parties as to whom issues have been joined, Rule 38.05; when a jury is properly demanded the trial will be by jury unless consent to a non-jury trial be made by all parties and entered of record, Rule 39.01; where a party who has .not timely demanded a jury makes a motion for a jury trial, the trial judge in his discretion may grant that party a jury trial, Rule 39.02. There is no provision which permits the trial judge to impanel a jury on his own motion; there must be a demand by a party. Compare: 5 Moore’s Federal Practice (2nd Ed.) § 39.08; Hargrove v. American Central Ins. Co., 125 F.2d 225 (10th Cir. 1942); Firemen’s Insurance Co. of Newark v. Smith, 180 F.2d 371 (8th Cir. 1950). See also the cases annotated at 6 A.L.R. Federal 217, 230-232.
The leading case to the contrary seems to be United Press Associations v. Charles, 245 F.2d 21, 17 Alaska 46 (9th Cir. 1957), cert. denied, 354 U.S. 925, 77 S.Ct. 1378, 1 L.Ed.2d 1435, wherein the parties failed to demand trial by jury within the time allowed by Rule 38. Thereafter the defendant filed a motion for a jury trial, which was denied. Several months later on the day of trial, the trial judge announced that he would impanel a jury to hear the case. The plaintiff objected, but proceeded to trial. The court reasoned that the plaintiff should have refused to go to trial before a jury, suffer judgment against it for failure to prosecute and appeal therefrom. By going to trial the court reasoned that the plaintiff acquiesced in the jury and waived any right it might have had to object. Under the court’s holding, however, that [506]*506course of action by the plaintiff would have been futile on appeal because the court further buttressed its decision with the following language:
In any event, by definition of the Rule, the judge had power to grant trial by jury when Charles (defendant) made a motion therefor. It can hardly be contended the judge lost jurisdiction when the motion by Charles for jury trial was denied. Although the latter was not insisting upon jury trial, he never withdrew the motion. The denial did not change the record. The denial was not unchangeable as a decree of Rhadamanthus. The judge could have set aside the denial and granted a jury on the eve of [the] trial. But, it is objected, he did not so set aside the denial, but granted jury trial sua sponte. If the judge had jurisdiction to set aside the order, he had jurisdiction to grant trial by jury.
In the quoted portion of the opinion the court seems to have based its decision upon the fact that a motion for trial by jury was made by a party, and, therefore, the judge was given jurisdiction to grant the request even though it had been previously denied. Considering the entire opinion in United Press Associations, supra, along with the rather strong dissent, we can not accept that case as authority for the proposition that the court in the instant lawsuit could force the parties to trial by jury. Here we have a timely consent by all parties that the previously demanded trial by jury be waived. That request was in accordance with Rule 39.01(a). The trial judge erred in his failure to honor that consent to a non-jury trial.
The trial judge by final Memorandum and Order seems to indicate that he impaneled an advisory jury as allowed by Rule 39.03. That Rule provides as follows: “Nothing in this rule shall impair the right of a court to impanel an advisory jury as that right existed prior to the adoption of these rules.” We here note that there is a substantial difference in the verbiage of Rule 39.03, Tennessee Rules of Civil Procedure and Rule 39(c), Federal Rules of Civil Procedure.
In Tennessee an advisory jury may be impaneled only in cases of an inherently equitable nature. Hurt v. Earnhart (Tenn.Ct.App.1976) 539 S.W.2d 133; State ex rel. Webster v. Daugherty (Tenn.Ct.App.1975) 530 S.W.2d 81. In such cases the trial judge or chancellor may of his own motion impanel an advisory jury and submit to it such issues of fact as he deems appropriate. The judge or chancellor need not accept the finding of the jury, but he must give it great weight. State ex rel. Webster, supra.
In cases of a non-equitable nature, however, the chancellor or judge must submit to the jury the issues triable by jury and for which demand for jury trial was made, Rule 38. In these situations the trial judge may reject the jury verdict as thirteenth juror, “but such rejection leads to a new trial with a new jury — not a substituted verdict by the Chancellor (trial judge)” Hurt, supra.
Admittedly, the case at bar deals with an additur as allowed by T.C.A. § 20-1330. It must be noted, however, that under the circumstances the trial judge did not have a legally impaneled jury and the verdict to which the additur was suggested was not valid. We also recognize that the fact to be determined was the amount of compensation due the landowner. An argument could be made that the trial judge was the ultimate decider of that fact by virtue of the suggested additur. We reject that line of reasoning because in every condemnation lawsuit the trial judge would be licensed to force a jury trial upon the parties and then correct the error by suggesting an additur or remittitur. The Rules were not designed to permit the trial judge to evade his duty to initially decide issues of fact in non-jury lawsuits.
We, therefore, hold that under the circumstances the trial judge erred in forcing the parties to a jury trial and the jury as impaneled was not an advisory jury. The defendants’ first assignment of error is sustained, the judgment of the trial court is reversed and this lawsuit is remanded to [507]*507the Circuit Court sitting in Hamilton County, Tennessee, for a new trial. The cost in this Court is adjudged one-half against each party.
SCOTT, Special Judge, concurs.
NEARN, J., dissents.