State ex rel. v. Gilmore

23 La. Ann. 606

• Court: Supreme Court of Louisiana
• Decided: July 15, 1871
• Docket: No. 276
• Status: Published

Opinion

Ludeling, C. J.

This is a contest for office under act No. 156 of the-General Assembly of 1868.

The defendants prayed for a trial by jury, which was refused by the judge a quo because he thought the application was made too late, and because the defendants had not asked when first-notified of the suit fora special jury to be summoned.

We think the judge erred in refusing the jury. Whether the exception filed could have been regarded as an answer or not, it was treated as an exception, and the defendant was allowed to file an answer, in which he asked for a jury. If, at the time the exception was filed, it had been held by the court to be an answer, defendants might stilL liave filed an amended answer asking for a jury, and we do not think they lost that right, because it was not decided that the exception was substantially au answer, until much later in the proceedings. State ex rel. v. Head, 21 An. The act, under which the relators are proceeding, accords the defendants the right to a trial by jury, and we do not think they have waived it.

It is therefore ordered that the judgment of the court a qua be reversed, and that the cause be remanded to be proceeded with according-to law.