Solosth v. Pere Marquette Railway Co.

Michigan Supreme Court

Solosth v. Pere Marquette Railway Co.

237 N.W. 554, 255 Mich. 62, 1931 Mich. LEXIS 572

CourtMichigan Supreme Court

DecidedJune 25, 1931

DocketCalendar 35,691

StatusPublished

Cited by3 cases

This text of 237 N.W. 554 (Solosth v. Pere Marquette Railway Co.) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Solosth v. Pere Marquette Railway Co., 237 N.W. 554, 255 Mich. 62, 1931 Mich. LEXIS 572 (Mich. 1931).

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Opinions

The right to a trial by jury is secured to litigants by the Constitution. It "shall be deemed to be waived in all civil cases unless demanded by one of the parties in such manner as shall be prescribed by law." Article 2, § 13.

Plaintiff failed to file demand therefor. But, under the rule then in force, the trial court had the right, in its discretion, to transfer the cause to the jury calendar. It appears that the discretion vested in the court had been exercised so consistently as to become almost a rule of practice in that circuit. (See Murphy v. Wayne Circuit Judge,249 Mich. 438.) In the statement of facts, as stipulated by the attorneys, it is said:

"At the time of the decision of said motion, said Willis B. Perkins held in substance that under and by virtue of the Michigan Court Rules, effective January 1, 1931, and particularly Rule No. 33 thereof, the trial judge had no discretionary power to transfer any case to the jury calendar, unless demanded in the manner and within the time provided by said Rule No. 33. It was thereupon agreed in open court that the position of the trial court with reference to Rule No. 33 in relation to the application to this case might be stated on a settled case on appeal to this court."

In reliance upon the anticipated action of the court when the case came on for trial, plaintiff omitted to file the demand. While her right to a jury trial had been waived by her failure to do so, *Page 66 it was not lost to her if the trial court followed the usual practice and transferred the cause to the jury calendar.

In my opinion Rule No. 33 should not be held applicable to conditions in cases pending at the time it became effective when compliance with its requirements is impossible. The order appealed from is vacated and set aside and the cause remanded for further proceedings. Under the circumstances, I think no costs should be allowed.

CLARK, McDONALD, NORTH, and FEAD, JJ., concurred with SHARPE, J.

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The right to a trial by jury is secured to litigants by the Constitution. It "shall be deemed to be waived in all civil cases unless demanded by one of the parties in such manner as shall be prescribed by law." Article 2, § 13.

Plaintiff failed to file demand therefor. But, under the rule then in force, the trial court had the right, in its discretion, to transfer the cause to the jury calendar. It appears that the discretion vested in the court had been exercised so consistently as to become almost a rule of practice in that circuit. (See Murphy v. Wayne Circuit Judge,249 Mich. 438.) In the statement of facts, as stipulated by the attorneys, it is said:

"At the time of the decision of said motion, said Willis B. Perkins held in substance that under and by virtue of the Michigan Court Rules, effective January 1, 1931, and particularly Rule No. 33 thereof, the trial judge had no discretionary power to transfer any case to the jury calendar, unless demanded in the manner and within the time provided by said Rule No. 33. It was thereupon agreed in open court that the position of the trial court with reference to Rule No. 33 in relation to the application to this case might be stated on a settled case on appeal to this court."

In reliance upon the anticipated action of the court when the case came on for trial, plaintiff omitted to file the demand. While her right to a jury trial had been waived by her failure to do so, *Page 66 it was not lost to her if the trial court followed the usual practice and transferred the cause to the jury calendar.

In my opinion Rule No. 33 should not be held applicable to conditions in cases pending at the time it became effective when compliance with its requirements is impossible. The order appealed from is vacated and set aside and the cause remanded for further proceedings. Under the circumstances, I think no costs should be allowed.

CLARK, McDONALD, NORTH, and FEAD, JJ., concurred with SHARPE, J.

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Bluebook (online)

237 N.W. 554, 255 Mich. 62, 1931 Mich. LEXIS 572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/solosth-v-pere-marquette-railway-co-mich-1931.

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