Lamar v. Bankers Health & Life Ins.

Bloodworth, J. (After stating the foregoing facts.) In the brief of counsel for the plaintiff in error he says: “The record presents only one question for consideration by this court: Was the demand in writing in the plaintiff’s petition, 'with this she puts herself upon the country,’ sufficient in law to enable her cause to be tried by a jury.” As this point seems never to have been passed upon by either of the appellate courts of this State, we have made a rather exhaustive examination of text-books, encyclopedias, and reports for some precedent. The case nearest to this one that we have found is that of Cleaves v. Davidson, 85 Tenn. 380. In that case it was held that “The ordinary conclusion to the country, in a plea, is not a sufficient demand for a jury, by the defendant, under the act of 1875, chapter 4, requiring that 'either party desiring a jury shall in case of original suits, demand á jury in his first pleading, tendering an issue triable by jury.’ ” And the court held in that case (p. 382) : “Though 'the resort to a jury, in ancient times, could, in general, be had only by the mutual consent of each party,’ and the conclusion to the country was then used by the one party to indicate that the issue tendered was to be tried by a jury, and the similiter was used by the other party to express his consent to such trial (Stephens on Pleading, Buie 3, pages 236-7; [530] Rule 2, page 229), we thiuk the ancient origin of such pleading, and the reasons therefor, cannot now be invoked, as controlling, in the construction of a modern statute.” We agree with the conclusion reached in the foregoing case that “the ancient origin of such pleading and the reasons therefor, -cannot now be invoked, as controlling, in the construction of a modern statute.” Under the act creating the municipal court of the City of Macon, when a trial by jury is desired it is not a sufficient demand therefor for the petition to conclude with the words, “And with this your petitioner puts herself upon the country,” but there must be an express, unequivocal, “written demand for trial by jury” as required by the statute. Judgment affirmed. Broyles, G. J., and Lulce, J., concur.