Steiger v. Mullaney

KNOX, Chief Judge. From the standpoint of personal inclination, I should be glad to relieve plaintiff from the consequences of the failure of her attorneys seasonably to demand that her cause of action be tried to a jury. Nevertheless, since defendant opposes the motion here made, I seriously doubt my right, except for reasons far more persuasive than those here advanced, to exercise my discretion in favor of the plaintiff. The Federal Rules of Civil Procedure, 28 U.S.C.A., have now been in force for a period of about ten years, and if a default thereunder is believed by an adversary to be of advantage to himself, I entertain the view that I cannot properly take it away from him. For this reason, the motion to transfer this case to the jury calendar is denied. See MacDonald et al. v. Central Vermont Ry., D.C., 31 F.Supp. 298; Irvine v. Luckenbach S. S. Co. Inc., D.C., 7 F.R.D. 127; Arnold v. Chicago, B. & Q. R. Co., D.C., 7 F.R.D. 678; State of Delaware v. Massachusetts Bonding & Ins. Co., D.C., 3 F.R.D. 165; McNabb v. Kansas City Life Ins. Co., 8 Cir., 139 F.2d 591.