Thermo-Industries of Charlotte, Inc. v. Talton Construction Co.

Brock, J. Appellant contends that the transfer of this case from the Superior Court Division to the District Court Division in the General Court of Justice without giving appellant prompt notice of the effecting of said transfer and the subsequent denial of appellant’s demand for a jury trial constituted a denial of his right under the Constitution of North Carolina to trial by jury. We agree. This case being originally instituted in the Superior Court of Wake County, appellant was entitled to a trial by jury unless jury trial was waived or the facts of the controversy were not in dispute. Sullivan v. Johnson, 3 N.C. App. 581, 165 S.E. 2d 507. With the implementation of the District Court Division in Wake County, the right to a jury trial is available to litigants upon demand and such demand must be made in writing at any time after the commencement of the action and not later than 10 days after the filing of the last pleading directed to the issue or after the entry of an order transferring the cause to the District Court Division, whichever occurs first. G.S. 7A-196. (Prior to amendment effective 1 January 1970.) Obviously, where one of the parties has no notice of the entry of an order transferring his case from the Superior Court to the District Court, he is not on notice to demand a jury trial to prevent a statutory waiver. All of the evidence in the record [57] shows that appellant was not notified of the Order transferring his case from the Superior Court to the District Court; therefore, we are of the opinion that appellant was denied his constitutional right to trial by jury. Kelly v. Davenport, 7 N.C. App. 670, 173 S.E. 2d 600. New Trial. Britt and Hedrick, JJ., concur.