Jaynes v. Marrow , 144 Colo. 138 ( 1960 )

Mr. Justice Frantz

specially concurring:

The tardy request for a jury trial in this case was ineffectual. By Buie 7 (b) (1), R.C.P. Colo., it is required that to be relieved from the operation of Rule 38 (d) the moving party “shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” No reasons were given for the failure to make a timely request for a jury trial. Under these circumstances, the request for a jury trial should have been denied. Could the trial court on its own motion set the cause for trial to a jury?

It is provided by Rule 39 (b) that where a demand for a jury trial has not been made, “the court in its discretion may order a trial by a jury of any or all issues.” The weighted words in the latter rule are “in its discretion,” which words are in effect disregarded by the other opinions. The exercise of discretion connotes action that is not arbitrary, vagarious or capricious; it involves the use of judgment on the part of the court after a consideration of the circumstances which would move the court to act.

Judicial discretion “implies the absence of arbitrary determination, capricious disposition, or whimsical thinking, imports the exercise of discriminating judgment within the bounds of reason, and is governed by the situation and circumstances affecting the exercise thereof.” 27 C.J.S., p. 292.

In order to determine whether discretion has been exercised, we must evaluate the action of the trial court in relation to what is presented to it.for disposition. Ordinarily, the situation and circumstances will resolve the problem. But the instant record is devoid of such factors. The record being in such plight, we must next resort to what the trial court said concerning its action. Somehow the trial court must be moved to act, and whatever provoked action must appear in the record.

The ruling of the trial court is ambiguous in that it cannot be determined whether action was on defendant’s motion or the court acted on its own motion. A record in such uncertain state requires us to presume that regularity attended and that the court acted on its own motion. It is clear that the court ordered a trial by a jury because no prejudice would result thereby to the plaintiff; the trial court so advised as to what prompted it to order a trial by jury. Absent any prejudice in the premises, it is difficult to say that the trial court failed to exercise discretion.

For these reasons I specially concur.