Stevens v. McDonald , 173 Mass. 382 ( 1899 )

Barker, J.

The case was reached for trial in a jury waived session of the Superior Court for Suffolk, on June 24, 1898, having been upon the published list of cases for trial without a jury since the making up of that list prior to the beginning of the June sitting. Although after the withdrawal of the plaintiff’s request for a jury trial the clerk had taken the case from the list of cases for trial by jury, and had placed it upon the jury waived list without any special order of court, the defendant made no complaint, and no effort to have the case retransferred to the list of cases for trial by jury until the case was actually reached for trial, when he refused to proceed to trial without a jury, and then filed his motion to expunge the plaintiff’s withdrawal of his claim of jury trial, and to restore the action to the list of cases for trial by jury.

Neither our statutes nor the decisions in which they have been construed require any express declaration of a party to constitute his waiver of his right to a jury trial. See St. 1874, c. 248, § 1; St. 1875, c. 212, § 1; Pub. Sts. c. 167, § 69; St. 1894, c. 357; Foster v. Morse, 132 Mass. 354; Bailey v. Joy, 132 Mass. 356; Vitrified Wheel & Emery Co. v. Edwards, 135 Mass. 591; Dole v. Wooldredge, 142 Mass. 161, 182. In our opinion the waiver may be found from conduct the only explanation of which, other than a design to obstruct the adverse party’s right to obtain justice in the courts “ promptly and without delay,” is an assent to a trial without a jury. The inevitable effect of transferring the case to the jury list would have been a long delay. The presiding justice was justified in ruling, in consideration of the defendant’s conduct since the case had been placed upon the jury waived list, that the granting or refusal of his motion was a matter within the discretion of the court, and in denying the motion.

In thus treating as a waiver the defendant’s conduct in allowing the case to be actually reached for trial without asking for a jury, we intimate no opinion upon the question whether his previous omission himself to file a notice that he desired a trial 'by jury was a waiver of his right.

No question is argued by the defendant upon the merits of the action. Exceptions overruled.