McLarin v. McLarin , 224 Ga. 675 ( 1968 )

224 Ga. 675 (1968) 163 S.E.2d 914

McLARIN
v.
McLARIN.

24794.

Supreme Court of Georgia.

Argued September 13, 1968. Decided October 10, 1968.

Melvin Pazol, for appellant.

Russell G. Turner, Sr., for appellee.

ALMAND, Presiding Justice.

This appeal is from an order denying the plaintiff-appellant's motion for a new trial in which the trial court without the intervention of a jury entered a decree in an action for divorce and alimony. One of the special grounds in the motion for a new trial was that the trial court failed to honor the appellant's demand for a jury trial and over her objection tried the case without a jury.

Code Ann. § 30-101 (Ga. L. 1960, pp. 1023, 1024) provides: "Total divorces in proper cases may be granted by the superior court. Unless an issuable defense is filed as provided by law and a jury trial demanded in writing by either party on or before the call of the case for trial, the judge shall hear and determine all issues of law and fact in all petitions for divorce and permanent alimony, and other issues made in the pleadings."

The record discloses that: The appellant on July 21, 1967, filed suit for divorce and alimony in Fulton Superior Court against the appellee. Appellee filed an answer and cross bill to the petition in which he prayed that the appellant's prayers be denied and that he be granted a divorce, and filed a demand for a jury trial. On December 20, 1967, in a letter addressed to counsel for the appellee which was also sent to and filed in the clerk's office prior to the call of the case, the attorney for appellant demanded a jury trial as follows: "However, if this case goes to trial, we will insist upon a jury; and I am herewith sending a copy of this letter to the Clerk of the Superior Court of Fulton County demanding a jury trial in behalf of the plaintiff." This letter was properly captioned with the names of the parties and the case number and was recorded December 26, 1967, by the Clerk of Fulton Superior Court.

On February 2, 1968, the trial judge entered a "Special Order For Trial By Jury" which was as follows: "It appearing to the court, for good and sufficient reasons, it is hereby considered, ordered and adjudged that the above captioned case be specially set for trial by jury during the March, 1968 term of Fulton Superior Court in Domestic Division." On April 23, 1968, the appellee dismissed his demand for a jury trial, and the case was tried without a jury on April 23, 1968.

It does not appear in the record that the order setting the case for trial by jury was ever revoked, and it appearing that the appellant had filed her written demand for a jury trial, it was error for the trial court, over the appellant's objections, to try the case without the intervention of a jury. The trial court erred in refusing to grant the appellant a new trial on special ground 4 of the motion for a new trial.

Judgment reversed. All the Justices concur.