Opinion
No. 8375.
January 27, 1977.
APPEAL FROM 24TH JUDICIAL DISTRICT COURT, DIVISION "E", PARISH OF JEFFERSON, STATE OF LOUISIANA, HONORABLE FRED BOWES, J.
Porteous, Toledano, Hainkel Johnson, James S. Thompson, New Orleans, for defendants-relators.
Benjamin B. Saunders, Metairie, for plaintiffs-respondents.
Before LEMMON, STOULIG and BEER, JJ.
On July 7, 1976, plaintiffs Donald R. Bergeron and Cynthia Bergeron instituted suit in the 24th Judicial District Court against David L. Anderson and Allstate Insurance Company. On August 16th, the defendants filed their answer and requested trial by jury. On or about August 23rd, defendants' counsel of record received notice of the district court's order requiring the posting of a $1,000 jury cost bond, that order having been signed on August 20th. The bond, which shows a date of August 31st, was filed on September 7th, although it is possible that it may have been physically in the clerk's office some time prior to that date. (The Labor Day weekend was from September 4th through September 6th.)
At any rate, the record further indicates that on September 2nd, the attorney for plaintiffs filed a motion to set the case for trial on the merits, and, on that same date, the district judge entered an order removing the case from the jury docket and placing it on the docket for trial by the judge without a jury. Defendants, Anderson and Allstate, have, through their counsel, sought to return the matter to the jury docket without avail. We granted a writ of certiorari to review the matter.
Supporting memoranda has been filed by the honorable district judge before whom the case has been set for trial and by able counsel for Anderson and Allstate.
We are in sympathetic understanding of the dilemma which confronted the diligent trial judge in this matter, but must, nevertheless, grant the relief sought.
Unfortunately, the Code of Civil Procedure and the Revised Statutes are silent in dealing with the problem that is apparent in this matter. The problem could, we believe, be obviated by a provision in the Code of Civil Procedure empowering the district court to set a specific time limitation for the filing of a jury cost bond, failing which the case would be removed from the jury trial docket.
The district court was placed in a dilemma by reason of the fact that the jury cost bond was not filed of record (though it had been obtained) at the moment in time when the court was presented with a motion to set the case for trial on the non-jury docket. The court, thus confronted, granted the motion.
The generally uncontested chronology of events causes us to conclude that counsel for Anderson and Allstate proceeded with due diligence and without unexplainable delay in obtaining the bond and forwarding same for filing to the Clerk of the 24th Judicial District Court. The statute requiring the posting of the jury bond implies — we believe — a reasonable period for compliance with the order setting the amount of the bond.
Under the particular circumstances of this case, we believe that the proper exercise of our supervisory authority requires that we reinstate the case on the jury docket. Accordingly, the order of the 24th Judicial District Court is recalled and set aside, and it is now ordered that the matter be placed on the jury docket.
RECALLED, SET ASIDE AND RENDERED.
The right to a civil jury trial is a statutory right to which a party is entitled when he makes a timely request and complies with the other requirements of the governing statutes. At issue in this case is the requirement of a bond. No positive law delineates the time period within which the bond must be filed, but R.S. 13:3050 provides that "(n)o jury shall be ordered in any civil case unless the bond is given" by the requesting party.
In the present case the defendant requested a jury trial in its answer, whereupon plaintiff immediately filed a motion to fix the case for trial. The trial judge, believing he was prohibited by R.S. 13:3050 from setting the date for trial by jury (because the recently ordered bond had not yet been filed) and reluctant to hold the motion to fix in abeyance (because of administrative problems in keeping up with records) set the case for trial before the judge without a jury.
This action, while expedient, constituted an unreasonable denial of defendant's statutory right to a jury trial. A party who has timely requested a jury trial and has otherwise complied with the statute must be afforded a reasonable time to post the bond. If administrative problems exist, the problems must be confronted and resolved by court rule (which does not contravene the statutes that authorize jury trial) or by reasonable exercise by the trial judge of his inherent powers.
The above quoted provision of R.S. 13:3050 does not prohibit (when the bond has not yet been filed) the fixing of a date for trial by jury, but rather prohibits the ordering of a jury. This court in Jennings v. Coleman, 250 So.2d 845 (La.App. 4th Cir. 1971), interpreted the quoted provision (which read essentially the same at the time) as referring to the order for the commissioners to draw a jury venire.
In the Jennings case the trial judge had ordered the filing of a jury bond within 60 days of signing the original request for jury trial, in accordance with a local rule of court. The requesting party filed the bond after the 60 days had elapsed and later moved to fix the case for trial. The trial judge refused to place the case on the jury docket because the bond had not been filed timely. This court ordered the case placed on the jury docket, holding that such a limitation was unreasonably restrictive because "the posting of bond is proper at any time prior to a motion to set the case for trial", since "it is only after the filing of this kind of motion that it becomes necessary for the court to fulfill its function of providing a venire." The Jennings decision implicitly found unreasonable the requirement of a bond at a point in time perhaps many months or even years (depending upon when the venire was eventually ordered to be drawn) before the bond served any useful purpose. Clearly, the decision (holding a limitation unreasonable when imposed before the filing of a motion to fix) is not authority for denying the requesting party a reasonable time to post the bond when the other party files a motion to fix immediately after the request for jury trial. Neither does that decision prohibit a court rule or an order prescribing a reasonable period for filing the bond with beginning and ending dates reasonably related to the time of drawing the jury venire.
The trial judge in the present case could have issued an order (1) fixing the date for trial and (2) commanding the drawing of the venire at some earlier date, contingent upon the bond being filed on or before the earlier date (but not less than a reasonable time after issuance of the order). Or he could have issued some other reasonable order. But under the circumstances of this case he could not reasonably require the requesting party, in order to avail himself of his statutory right, to win a race to the courthouse with his bond before his opponent got there with a motion to fix (especially when the requesting party was not even notified of post time or of the fact that a race was to take place).
I am in accord with the rationale expressed in the majority opinion but dissent from its result.
R.S. 13:3050 governing civil jury trials in parishes other than Orleans is silent as to the time specified for the posting of a jury bond. In the absence of such a provision there is implied in the statute a reasonable time within which to file the bond specified in the order granting the jury trial. What constitutes a reasonable time is dependent upon the circumstances and facts of each case.
There is a presumption that the trial judge acts with full knowledge of and in accordance with the intent and spirit of the law. Additionally the trial judge is intimately conversant with the circumstances attendant upon the issuance of and compliance with his order granting a jury trial and is therefore in the more advantageous position to determine if the litigant has been afforded a reasonable time within which to file his jury bond. In the absence of a palpable and manifest abuse of the trial judge's discretion in his determination of a reasonable time in each particular case, his action should not be disturbed.
There is nothing in the record to indicate the trial judge was not acting either in the spirit of the statute or that he abused his discretion under the circumstances peculiar to the instant matter. From the posture of the case as presented, I cannot conclude that the passage of 13 days did not afford the relator a reasonable opportunity to post the bond specified in the order of the court.
I agree with my colleague that the case of Jennings v. Coleman, 250 So.2d 845 (La.App. 4th Cir. 1971), is not apposite to the facts in the instant matter; however, I differ in the distinctions expressed in the concurrence.
For these reasons I am of the opinion that the action of the trial court should be affirmed and therefore dissent in part from the majority view.