Weber Electric Company v. Tuminelly, Inc.

206 N.W.2d 656 (1973)

WEBER ELECTRIC COMPANY, Plaintiff,
v.
TUMINELLY, INC., defendant and third-party plaintiff, Respondent,
v.
DORSO TRAILER SALES, INC., third-party defendant, Appellant.

No. 43564.

Supreme Court of Minnesota.

April 20, 1973.

Wiese & Cox, and Paul G. Neimann, Minneapolis, for appellant.

James G. Paulos, St. Paul, for respondent.

Heard before KNUTSON, C. J., and OTIS, KELLY, and SCHULTZ, JJ.

PER CURIAM.

This is an appeal by a third-party defendant, Dorso Trailer Sales, Inc., from an order denying it a new trial. The only issue is whether it was error not to grant appellant a jury trial. We hold that it was and reverse.

It is undisputed that both a jury trial and a court trial were designated in various notes of issue. Although the respondent third-party plaintiff supports appellant's contention that appellant had specifically asked the court for a jury trial, the court had no recollection of the motion and the record was silent on the subject.

Rule 38.01, Rules of Civil Procedure, entitled the parties to a jury trial unless the right was waived under Rule 38.02. The latter provision specifies the manner of waiver as follows:

"In actions arising on contract, and by permission of the court in other actions, any party thereto may waive a jury trial in the manner following:

(1) By failing to appear at the trial;

(2) By written consent, by the party or his attorney, filed with the clerk;

(3) By oral consent in open court, entered in the minutes."

Under the circumstances, we conclude that the appellant has not consented to waive a jury and should have been granted a new trial.

Reversed.