Sheth v. White , 1987 Tex. App. LEXIS 6213 ( 1987 )

722 S.W.2d 805 (1987)

Anil SHETH, M.D., Relator,
v.
Hon. Frank O. WHITE, Judge, 295th Judicial District Court, Respondent.

No. C14-86-894-CV.

Court of Appeals of Texas, Houston (14th Dist.).

January 15, 1987.

John C. Marshall, Steve Gonzalez, Houston, for relator.

Tom L. Pettiette, Houston, for respondent.

Before JUNELL, DRAUGHN and ELLIS, JJ.

OPINION

PER CURIAM.

On December 11, 1986, Anil Sheth, M.D., filed a motion for leave to file petition for writ of mandamus to order respondent, Judge Frank O. White, to vacate his order of December 9, 1986, and remove cause number 86-08237, styled Rosalie Preston v. Anil Sheth, M.D., from the non-jury docket and reinstate said cause on the jury docket for trial by jury.

On December 12, 1986, this Court granted relator's motion for leave to file petition for writ of mandamus and ordered Judge White enjoined from proceeding to a non-jury trial in Preston v. Sheth.

Rule 216, Texas Rules of Civil Procedure, requires an application be made for jury trial and a jury fee of five ($5) dollars be deposited with the District Clerk.

The jury trial fee was paid by the real party in interest, Rosalie Preston, on February 20, 1986. On July 15, 1986, Preston's attorney signed a trial certification request and certified the case ready for trial. Preston designated the case was to be a jury trial on the trial certification request form.

We hold the trial certification request form constituted an application for jury trial within the meaning of Rule 216. TEX.R.CIV.P. 216.

Rule 220, Texas Rules of Civil Procedure provides:

When a party has paid the fee for a jury trial, he shall not be permitted to withdraw the cause from the jury docket over the objection of the parties adversely interested.

On December 8, 1986, Preston presented to the court a motion to withdraw the case from the jury docket. The relator, the party adversely affected, objected. The trial court sustained Preston's motion to withdraw the case from the jury docket. Under Rule 220, the trial Court was not authorized to withdraw the case from the jury docket. TEX.R.CIV.P. 220.

Therefore, the petition for writ of mandamus is conditionally granted. The respondent, the Honorable Frank O. White, Judge of the 295th District Court, Harris County, Texas, is ordered to set aside his order of December 8, 1986, withdrawing the case from the jury docket, and should reinstate the case on the jury docket.

Writ of mandamus will issue only if respondent fails to comply with the order of this Court.