Opinion
6 Div. 828.
March 19, 1931. Rehearing Denied April 23, 1931.
Appeal from Circuit Court, Jefferson County; Gardner Graham, Judge.
Clifford Emond and Erle Pettus, both of Birmingham, for appellants.
Judgment by default could not have been entered in the cause without writ of inquiry. Code 1923, § 7667; Frazier v. Dismuke, 22 Ala. App. 594, 118 So. 227.
G. P. Benton, of Fairfield, for appellee.
The demand for trial by jury was not filed with the first pleading; it came too late.
The sole error insisted upon is the rendition of a judgment nil dicit without the intervention of a jury and writ of inquiry.
The action is upon promissory notes with claim for "reasonable attorney's fees," as stipulated in the notes.
A defendant must demand a jury trial within thirty days after the perfection of service on him. Code, §§ 8595, 9498. Unless filed within time, the right of trial by jury is waived.
The record shows complaint filed February 11th. It does not show the date service of summons was perfected on defendant. No demand for a jury was filed until August 9th. Error must affirmatively appear.
Affirmed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.