N.M. R. Civ. P. Dist. Ct. 1-039
N.M. R. Civ. P. Dist. Ct. 1-039
For submission of questions to a jury on adjudication of water rights, see Section 72-4-17 NMSA 1978. Right of jury limited. - This rule authorizes the parties to agree to permit a jury, rather than the court, to decide the case, but it does not purport to change the substantive law regarding the relief permitted under a particular cause of action. McLelland v. United Wis. Life Ins. Co., 1999-NMCA-055, 127 N.M. 303, 980 P.2d 86. One is entitled to demand jury trial of right when contesting a will. In re Will of Ferrill, 1981-NMCA-074, 97 N.M. 383, 640 P.2d 489. Trial court's denial of jury trial. - Where trial court's reasons for denying a motion for a jury trial, made after the time for demanding a jury has passed, are not shown by the record, nor does the record disclose what was submitted or considered by the court in ruling upon the motion, the trial court's ruling is presumed valid and the burden rests upon appellant to show the manner in which the court abused its discretion. Carlile v. Continental Oil Co., 1970-NMCA-051, 81 N.M. 484, 468 P.2d 885. Trial court may abuse its discretion in not granting a jury trial after a litigant has impliedly waived the right by failure to comply with rules governing the method of effecting such right, where the opposing party would not have been prejudiced, the trial would not have been delayed, or business of the court would not have been inconvenienced by granting the jury trial. Carlile v. Continental Oil Co., 1970-NMCA-051, 81 N.M. 484, 468 P.2d 885. Although the defendant, at least initially, had consented to a jury trial of a laches issue, her motion for dismissal at the close of the plaintiff's case in chief and her explicit casting of the laches issue as an equitable issue for decision by the court, without objection by the plaintiff, make it clear that the parties never expressly or impliedly consented to a jury trial of the issue. Therefore, Rule 39(B) was not applicable to the laches issue as it developed at trial, so that it was proper for the trial court to decide the issue when the defendant, following the court's declaration of a mistrial, renewed her motion to dismiss under Rule 41(B). Garcia v. Garcia, 1991-NMSC-023, 111 N.M. 581, 808 P.2d 31. No abuse of discretion where plaintiff knew answer was filed. - The trial court did not abuse its discretion in refusing to order a jury trial because of the plaintiff's delay in filing a jury demand where the plaintiff knew, on November 20, 1978, that an answer had been filed on November 3, 1978, yet did nothing toward obtaining a jury trial until December 5, 1978, when the jury demand was filed. Myers v. Kapnison, 1979-NMCA-085, 93 N.M. 215, 598 P.2d 1175. Where opposing party not prejudiced, court may waive time limitation for jury demand. - Rules or statutes limiting the time for filing a demand for jury trial, although mandatory in terms, are not always so regarded. It is the rule in this and in other jurisdictions that where the opposing party is not prejudiced, the court, in its discretion, may waive the delay, and its refusal to enforce the time limitation is not reversible error. In re Will of Ferrill, 1981-NMCA-074, 97 N.M. 383, 640 P.2d 489. Where no jury demand for strategic purposes, court may later deny new trial. - The denial of a motion for a new trial does not constitute an abuse of discretion where a demand for a jury trial was initially not filed at the time of the commencement of the action as a matter of trial strategy. El Paso Elec. v. Real Estate Mart, Inc., 1982-NMCA-101, 98 N.M. 490, 650 P.2d 12. Exercise of discretion distinguished. - The fact that one trial court exercises discretion in a certain manner does not compel a reversal when another trial court does not exercise discretion in the same manner. Aspen Landscaping, Inc. v. Longford Homes of N.M., Inc., 2004-NMCA-063, 135 N.M. 607, 72 P.3d 53, cert. denied, 2004-NMCERT-005. It is within a trial court's discretion to impanel an advisory jury and such a decision is not reviewable absent a clear abuse of discretion. Keeth Gas Co. v. Jackson Creek Cattle Co., 1977-NMSC-087, 91 N.M. 87, 570 P.2d 918. Question whether jury to be considered totally advisory. - Where the order granting a jury stated that upon the court's motion and the defendant's motion, all claims would be tried by an advisory jury, and the accompanying letter stated the jury was entitled to an advisory jury because some of the relief sought was equitable in nature, it was unclear whether the jury was a totally advisory jury under this rule or whether it was impaneled upon the judge's own motion. Keeth Gas Co. v. Jackson Creek Cattle Co., 1977-NMSC-087, 91 N.M. 87, 570 P.2d 918. Where the jury is not solely advisory, Rule 52 B(a) (see now Rule 1-052 NMRA), requiring findings of fact and conclusions of law, is not applicable. Keeth Gas Co. v. Jackson Creek Cattle Co., 1977-NMSC-087, 91 N.M. 87, 570 P.2d 918. Where the jury functioned in two capacities, both as a jury of right and as an advisory jury, since the court made its own determination, accepting and rejecting in part the jury's findings and then entered its final decree, the court fulfilled all of its responsibilities and did not misuse the jury. Keeth Gas Co. v. Jackson Creek Cattle Co., 1977-NMSC-087, 91 N.M. 87, 570 P.2d 918. Court may accept or reject in whole or in part the advisory jury verdict because the responsibility for the final determination of all questions of fact and law remains with the trial court. Keeth Gas Co. v. Jackson Creek Cattle Co., 1977-NMSC-087, 91 N.M. 87, 570 P.2d 918. Review of case employing advisory jury. - On appeal from a case where the trial judge has impaneled an advisory jury, review is directed to the decision of the trial court as if there had been no jury. Keeth Gas Co. v. Jackson Creek Cattle Co., 1977-NMSC-087, 91 N.M. 87, 570 P.2d 918. Court may not withdraw legal issues from jury even if equitable issues involved. - Under Subdivision (b) (see now Paragraph B) of this rule, once the parties consent to try an issue before a jury and the court orders a jury trial pursuant to the stipulation, the trial court cannot withdraw the legal issues from the jury on the ground that there are also equitable issues involved. Peay v. Ortega, 1984-NMSC-071, 101 N.M. 564, 686 P.2d 254. Possible jury prejudice. - A trial court is not obliged to search the mind and conscience of every juror to determine possible prejudice by every irregularity which arises during the course of a trial. State v. Thayer, 1969-NMCA-086, 80 N.M. 579, 458 P.2d 831. Law reviews. - For note, "Undue Influence in Wills - Evidence - Testators' Position Changes After In re Will of Ferrill," see 13 N.M.L. Rev. 753 (1983). Am. Jur. 2d, A.L.R. and C.J.S. references. - 75A Am. Jur. 2d Trial §1246; 75B Am. Jur. 2d Trial §1956. Questions for jury in action on policy insuring against theft of automobile, 14 A.L.R. 221. Substantial performance of contract for manufacture or sale of article as question for jury, 19 A.L.R. 822. Presumption from derailment as requiring submission of question of negligence to jury in action by passenger notwithstanding uncontradicted evidence negativing negligence, 23 A.L.R. 1214. Question for jury as to degree of force which owner is justified in using in defense of habitation or property, 25 A.L.R. 542, 32 A.L.R. 1541, 34 A.L.R. 1488. Question for court as to whether there is any evidence of malice in case of privileged communication so as to require submission of question of malice to jury, 26 A.L.R. 852. Duty and liability of master to servant injured by horse belonging to master as question for jury, 26 A.L.R. 890, 42 A.L.R. 226, 60 A.L.R. 468. Husband's liability for necessaries furnished wife, question to whom credit was given as for jury, 27 A.L.R. 578. Determination of question relating to foreign law as one of law or of fact, 34 A.L.R. 1447. Question for jury as to alteration of note which is claimed to release parties not personally consenting, 44 A.L.R. 1254. Question for jury as to breach of tenant's covenant as to repairs, 45 A.L.R. 82, 20 A.L.R. 782. Estoppel by silence as to interest in real property as question for jury, 50 A.L.R. 971. Introduction of extrinsic evidence as to intention as affecting province of court or jury as to construction of written contract, 65 A.L.R. 648. Construction and effect of foreign statute as question for court or jury, 68 A.L.R. 809. Question for jury as to establishment of boundary line by oral agreement or acquiescence, 69 A.L.R. 1533, 113 A.L.R. 421. Question for jury as to liability for injury by stepping or falling into opening in sidewalk while doors were open or cover off, 70 A.L.R. 1364. Credibility of interested witness as question of law or fact, 72 A.L.R. 32, 51. Validity of chattel mortgage where mortgagor is given right to sell as question of fact, 73 A.L.R. 253. Question for jury as to sufficiency of type of cattle guards at railroad crossing, 75 A.L.R. 948. Question for jury as to stockbroker's notice to customer before sale of stock for failure to furnish additional margin, 76 A.L.R. 1531. Question for jury as to waiver of right to rescind sale contract by use of article by buyer, 77 A.L.R. 1189, 41 A.L.R.2d 1173. Question for jury as to duty of pedestrian crossing street or highway as regards looking for automobile, 79 A.L.R. 1081. Question for jury as to existence of natural drainway for flow of surface water, 81 A.L.R. 273. Question for jury as to negligence in case of injury by trailer attached to vehicle, 84 A.L.R. 281. Due care of person killed at railroad crossing as question for jury, 84 A.L.R. 1239. Insolvency of bank as question of fact, 85 A.L.R. 816. Discretion of jury as to allowances of damages for conversion of commodities or chattels of fluctuating values after time of conversion, 87 A.L.R. 817. Rebuttal of presumption of receipt of letter properly mailed and addressed as question for jury, 91 A.L.R. 164. Question of law or fact as to reasonable time for presentation of check, 91 A.L.R. 1190. Question for jury as to adverse possession in case of mistake as to boundary, 97 A.L.R. 100. Question whether express contract was made as one for court or jury when not evidenced by formal instrument but in whole or part by informal writings, 100 A.L.R. 969, 977. Value of corporate stock for purpose of income tax as a question of fact, 103 A.L.R. 958. Negligence in maintaining slippery condition of floor as question for jury, 118 A.L.R. 425. Question for jury as to whether negligence in repairing or servicing automobile was proximate cause of subsequent injury, 118 A.L.R. 1129. Degree of inequality in sidewalk which makes question for jury or for court, as to municipality's liability, 119 A.L.R. 161, 37 A.L.R.2d 1187. Question whether distraction of attention of driver of automobile constituted negligence or wantonness, 120 A.L.R. 1520. Questions affecting privilege of statements and nature of comment upon judicial, legislative or administrative proceeding or decision therein as for court or jury, 155 A.L.R. 1350. Nature and effect of jury's verdict in equity, 156 A.L.R. 1147. Authority of agent who delivers commercial paper or other obligation to third person for collection to receive payment of proceeds from latter as question for jury, 163 A.L.R. 1209. Reasonableness of time for exercise of option to terminate, cancel or rescind contract as question of law or fact, 164 A.L.R. 1026. Weight in value of dying declaration as question for jury, 167 A.L.R. 147. Binding effect of parties' own unfavorable testimony as question for court or jury, 169 A.L.R. 798. Assault by truck driver or chauffeur within scope of employment as question for jury, 172 A.L.R. 542. Question for jury as to proximate cause of injury by explosives left accessible to children, 10 A.L.R.2d 22. Tenant's liability for damage to leased property due to his acts or neglect as question for jury, 10 A.L.R.2d 1012. Negligence of building or construction contractor as ground of liability upon his part for injury or damage to third person occurring after completion and acceptance of the work, 13 A.L.R.2d 191. Jury trial in action for declaratory relief, 13 A.L.R.2d 777, 33 A.L.R.4th 146. Bad faith of real estate broker in stating to prospective purchaser that property may be bought for less than list price, in breach of duty to vendor as question for court or jury, 17 A.L.R.2d 904. Master-servant relation where operator is furnished with grease machine or motor vehicle as question of fact or law, 17 A.L.R.2d 1388. Question as to who are accomplices within rule requiring corroboration of their testimony as one of law and fact, 19 A.L.R.2d 1352. Question, as one of law for court or of fact for jury, whether oral promise was an original one or was a collateral promise to answer for the debts, default or miscarriage of another, 20 A.L.R.2d 246. Proof of identity of person or thing where object, specimen, or part is taken from a human body, as basis for admission of testimony or report of expert or officer based on such object, specimen or part, 21 A.L.R.2d 1216. Uniform Judicial Notice of Foreign Law Act, 23 A.L.R.2d 1437. Intention to abandon private easement by nonuser as question for court or jury, 25 A.L.R.2d 1265. Qualified privilege in a defamation of one relative to another by person not related to either as question for court or jury, 25 A.L.R.2d 1388. Injury to insured while assaulting another as due to accident or accidental means as question of fact, 26 A.L.R.2d 399. Jury question as to reasonable time within which to demand autopsy under insurance policy, 30 A.L.R.2d 837. Question for jury as to duty of driver of automobile whose view is obscured by dust, smoke or atmospheric conditions, 42 A.L.R.2d 13, 32 A.L.R.4th 933. Dentist's negligence as question for jury, 83 A.L.R.2d 7, 11 A.L.R.4th 748. Question of jury as to meaning of "poison," as used in insurance policy, 14 A.L.R.3d 783. Right to trial by jury in criminal prosecution for driving while intoxicated or similar offense, 16 A.L.R.3d 1373. Right in equity suit to jury trial of counterclaim involving legal issue, 17 A.L.R.3d 1321. Issues in garnishment as triable to court or to jury, 19 A.L.R.3d 1393. Contributory negligence in failing to comply with statute regulating travel by pedestrian along highway as question for jury, 45 A.L.R.3d 658. When jeopardy attaches in nonjury trial, 49 A.L.R.3d 1039. Landlord's knowledge of defect in inside steps or stairways as jury question, 67 A.L.R.3d 587. Jury question as to landlord's liability for injury or death due to defects in exterior stairs, passageways, areas or structures used in common by tenants, 68 A.L.R.3d 382. Establishment of "family" relationship to raise presumption that services were rendered gratuitously, as between persons living in same household but not related by blood or affinity, 92 A.L.R.3d 726. Authority of state court to order jury trial in civil case where jury has been waived or not demanded by parties, 9 A.L.R.4th 1041. 88 C.J.S. Trial § 203; 89 C.J.S. Trial § 547.