Przybyla, by guardian ad litem, Appellant, vs. Chain Belt Company, Respondent.
April 11
May 1, 1914.
Milwaukee civil court: Trial by jury: Denial of right: Appeal: Ground for reversal.
1. Where one party to a civil action in the Milwaukee civil court demands a jury and pays the fees required by sub. 2, sec. 19, ch. 549, Laws of 1909, the case becomes a jury case and it is not necessary for the opposing party to demand a jury.
2. The party making the demand may, before the trial, waive his right to a jury trial and if he does so will not be obliged to pay the additional trial fee, but the opponent may then insist that the case remain a jury case and pay such fee.
3. Denial of the jury trial to which a party was entitled in the Milwaukee civil court is ground for reversal of the judgment of that court and the granting of a new trial in the circuit court.
Appeal from au order of the circuit court for Milwaukee •county: J. G. Ludwig, Circuit Judge.
Affirmed.
The appellant commenced an action in the civil court of Milwaukee county for personal injuries received by him while employed in defendant’s shop. It appears by the’ docket of that court that upon the return day and before the joining of issue the plaintiff demanded a jury trial before a jury of six, and paid $6 into court as a jury fee, and the case was adjourned to the nest term for trial. .The docket shows the following entries on the adjourned day:
“The plaintiff by his attorneys waives the trial by jury. The defendant thereupon demands a trial by jury. Plaintiff objects to the granting of a jury trial to the defendant. The court denies the motion of the defendant. Exception.”
*217Tbe trial afterwards proceeded before tbe court, findings of fact were made and judgment rendered tbereon for tbe plaintiff, from wbicb judgment an appeal was taken to tbe circuit court, where tbe judgment was reversed on tbe ground of manifest prejudicial error, in tbat (1) tbe defendant was denied a trial by jury, and (2) tbe evidence does not sustain tbe findings and judgment; and a new trial of tbe action was ordered in tbe circuit court. From tbis order tbe present appeal is taken.
Tbe statute creating tbe civil court (cb. 549, Laws of 1909) provides tbat either party to a civil action may, at or prior to tbe time of joining issue, demand tbat tbe action be tried' by a jury of six men or by a jury of twelve men, on first paying to tbe clerk of tbe court $6 or $12, as tbe case may be; tbat a failure to make such demand shall be a waiver of tbe right; and tbat when such demand is made and such sum deposited, “tbe first six persons, when a trial by a jury of twelve men is not demanded, or tbe first twelve persons, when a trial by jury is demanded, who appear as their names are drawn and called, and who are not lawfully challenged and are approved as indifferent between tbe parties and not discharged or excused, shall be sworn and constitute tbe jury to try tbe issue.” Sub. 2, sec. 19. Tbe statute further provides: “There shall be paid to the clerk . . . tbe following sums only as court fees in a civil action: . . . for tbe trial of an action by a jury in addition to all other fees two dollars and fifty cents . . .” (sub. 1, sec. 23) ; also tbat tbe clerk shall require prepayment of tbe fees, unless by an order of one of tbe judges upon a certain showing be be directed to waive such advance payment (sub. 2, sec. 23) ; also tbat all fees, except witness and interpreter fees, shall belong to tbe county of Milwaukee, but tbat fees prepaid by either party recovered by any judgment in bis favor and paid into court shall be refunded to him by tbe clerk (sub. 3, sec. 23).
Eor tbe appellant there was a brief by John G. Eleczha
*218and Glicksman> Gold & Corrigan, and oral argument by Mr. Kleczka and Mr. W. L. Gold.
For tbe respondent there was a brief by Doe & Bdllhorn, and oral argument by J. B. Doe.
WiNsuow, O. J.
In this case it is held:
1. When one party to a civil action demands a jury and pays tbe fees required by sub. 2 of sec. 19 of tbe Civil Court Act, it is not necessary for tbe opposing party to demand a jury, because tbe case then becomes a jury case, for trial by either six or twelve men, according to tbe demand which has been made. Any other interpretation of tbe statute would mean that one party could practically lay a trap for bis opponent by demanding a jury and paying the fees and after-wards waiving bis demand when it bad become too late for bis opponent to make it.
2.
If tbe party making tbe demand conclude before tbe trial that be does not desire a jury, be may doubtless waive bis right to' a jury trial, and if be does so be will not be obliged to pay tbe additional trial fee of $2.50, but tbe opponent may then insist that tbe case remain a' jury case and pay tbe additional trial fee.
8. In tbe present case tbe record clearly shows that tbe defendant was denied tbe jury trial, which was its right, because it was thought that it bad waived tbe right by not demanding the same on tbe return day, hence tbe circuit court was right in reversing tbe judgment on tbe first ground assigned.
No opinion is expressed as to tbe second ground assigned for tbe reversal of tbe judgment.
By the Court. — Order affirmed.