Opinion
April 10, 1951.
Dunham Dunham, of St. Augustine, for plaintiff.
Frank D. Upchurch and Howell W. Melton, of St. Augustine, for defendant.
The plaintiff below has certified the following question for decision: Where neither the plaintiff nor the defendant has demanded a jury trial in their complaint or answer may the defendant at a later date file an amendment demanding a jury trial?
It appears to us that the question comes within the purview of Rule 38 of the Supreme Court Rules, 30 F.S.A., and should be answered.
The obvious purpose of Rule 31, Florida Common Law Rules, 30 F.S.A., is to clear congested dockets and not to deny a jury trial where such denial might work injustice to either of the parties. As is stated in Messana v. Maule Industries, Inc., Fla., 50 So.2d 874, 876: "In promulgating the rule there was no purpose to deprive anyone of a jury trial, even if possible. In fact, there was no intent to coerce a litigant to relinquish his right to trial by jury. When the right is claimed the court has no alternative. If the claim comes after the time specified in the rule, the usual discretion is allowed the trial court in the matter."
Therefore, careful consideration of Rule 31, as read with Rule 15, Florida Common Law Rules, leads us to the conclusion that the question certified to us must be answered in the affirmative.
It is so ordered.
CHAPMAN, ADAMS and ROBERTS, JJ., concur.