Opinion
No. 43564.
April 20, 1973.
New trial — grounds — denial of jury trial.
Action in the Ramsey County District Court for labor and materials furnished wherein defendant, Tuminelly, Inc., filed a third-party complaint against Dorso Trailer Sales, Inc., and it filed a counterclaim. On the basis of a settlement agreement, the court, Otis H. Godfrey, Jr., found for third-party plaintiff, and third-party defendant appealed from an order denying its motion for a new trial. Reversed.
Wiese Cox and Paul G. Neimann, for appellant.
James G. Paulos, for respondent.
Heard before Knutson, C. J., and Otis, Kelly, and Schultz, JJ.
This is an appeal by a third-party defendant, Dorso Trailer Sales, Inc., from an order denying it a new trial. The only issue is whether it was error not to grant appellant a jury trial. We hold that it was and reverse.
It is undisputed that both a jury trial and a court trial were designated in various notes of issue. Although the respondent third-party plaintiff supports appellant's contention that appellant had specifically asked the court for a jury trial, the court had no recollection of the motion and the record was silent on the subject.
Rule 38.01, Rules of Civil Procedure, entitled the parties to a jury trial unless the right was waived under Rule 38.02. The latter provision specifies the manner of waiver as follows:
"In actions arising on contract, and by permission of the court in other actions, any party thereto may waive a jury trial in the manner following:
(1) By failing to appear at the trial;
(2) By written consent, by the party or his attorney, filed with the clerk;
(3) By oral consent in open court, entered in the minutes."
Under the circumstances, we conclude that the appellant has not consented to waive a jury and should have been granted a new trial.
Reversed.