Ford Motor Credit Co. v. Hayes

PARKER, Judge. The right to trial by jury in civil cases in the district court is preserved by G.S. 7A-196 provided timely demand is made in one of the ways authorized by statute. Both before and after the amendment which became effective 1 January 1970, the demand was timely if made in writing not later than ten days after the filing of the last pleading directed to the issues, and one authorized method of making the demand was by endorsement on the pleading of the party. The last pleading directed to the issues in this case was the defendants’ answer in which they included the demand for trial by jury. This demand was in the answer at the time the case was transferred to the district court and remained in the answer at all times thereafter. Defendants having made timely demand in a manner authorized by statute, it was error for the district judge to deny them a jury trial. Kelly v. Davenport, 7 N. C. App. 670, 173 S.E. 2d 600, and Tractor & Implement Co. v. Lee, 9 N. C. App. 524, 176 S.E. 2d 854, cited by appellee, are not controlling. In neither of those cases was any request for a jury trial made in the pleadings. Nor do we agree with appellee’s further contention that because the act governing the procedures in the Greensboro Municipal-County Court, Chap. 971 of the 1955 Session Laws, provided that there should be no jury trials in that court, the request for a jury trial contained in defendants’ answer must be treated as a nullity for all purposes. The demand for a jury trial was in fact contained in the answer and was present in the answer when the case was transferred to the district court. The entire answer, including the demand for jury trial, was one of the records of the Greensboro Municipal-County Court which [529] was transferred to the office of the clerk of superior court pursuant to G.S. 7A-135. Thus, at the very instant the case became pending in the district court, defendants’ written demand for j&ry trial was on file in the office of the clerk of superior court as a part of the record in the case. No further filing of a demand for jury trial was required. For the error of the court in denying defendants a jury trial, they are entitled to a New trial. Chief Judge Mallard and Judge Graham concur.