Summary
holding that decisions regarding the availability of a jury are reviewable by mandamus
Summary of this case from Ex Parte Master Boat BuildersOpinion
1 Div. 464.
October 9, 1952.
J. B. Blackburn, Bay Minette, and McCorvey, Turner, Rogers, Johnstone Adams, Mobile, for petitioner.
Party may waive his constitutional right of jury trial in civil action. Moore v. City of Mobile, 248 Ala. 436, 28 So.2d 203. Such waiver may be by oral consent in open court entered on record. 35 C.J. 202. Attorney has right to bind his client, in any action or proceeding, by agreement in relation to said cause, made in writing or by entry to be made on minutes of court. Code 1940, Tit. 46, § 46. Client is bound by acts of attorney in course of legal proceeding in absence of fraud or collusion. Hass Lbr. Co. v. Gibson, 172 Ala. 111, 54 So. 994; McWilliams v. Martin, 237 Ala. 624, 188 So. 677; State v. Neuhoff, 239 Ala. 584, 196 So. 130. Mandamus is proper remedy. Knight v. Farrell, 113 Ala. 258, 20 So. 974; Ex parte Tower Mfg. Co., 103 Ala. 415, 418, 15 So. 836, 837; Ex parte Louisville N. R. Co., 211 Ala. 531, 100 So. 843.
Hubert M. Hall, Bay Minette, for respondent.
For mandamus to lie there must exist clear legal right in petitioner, imperative duty on respondent to perform act he has refused to do, and there must be no other adequate remedy open to petitioner. City of Decatur v. Mohns, 235 Ala. 640, 180 So. 297; Koonce v. Arnold, 244 Ala. 513, 14 So.2d 512; Ex parte Jones, 246 Ala. 433, 20 So.2d 859. Mandamus will not lie when there is a remedy by appeal or other adequate remedy. Ex parte Taylor, 236 Ala. 219, 181 So. 760; Ex Parte McElroy, 241 Ala. 554, 4 So.2d 437; Ex parte Three Minute Cereal Co., 231 Ala. 429, 165 So. 584; Ex parte Hennies, 33 Ala. App. 229, 34 So.2d 17. Mandamus will not be awarded to require lower court to perform a judicial duty or one calling for exercise of discretion. State ex rel. Carmichael v. Jones, 252 Ala. 479, 40 So.2d 280. Right of Jury trial is personal right of which no person can be deprived against his will. Moore v. City of Mobile, 248 Ala. 436, 28 So.2d 203. Every reasonable presumption will be made against waiver of such right, and unequivocal acts must be shown to create an implied waiver. Jones v. Morrow, 21 Ala. App. 326, 108 So. 81. After a trial, if new trial is granted or reversal is had, either party may demand a jury. Knight v. Farrell, 113 Ala. 258, 20 So. 974.
Agreement in civil cause, entered into by parties or attorneys of record, submitting cause to trial without jury will not be construed to be binding on another trial at subsequent term. Martin v. King, 72 Ala. 354; Cook v. Morton, 254 Ala. 112, 47 So.2d 471.
This is an original petition addressed to this Court for a writ of mandamus to the Judge of the Circuit Court of Baldwin County, Alabama, commanding him to vacate and set aside an order which he made transferring to the jury docket for trial by jury a certain cause therein pending, wherein petitioners are the plaintiffs and James Morris and Leon Morris are the defendants, whereby the plaintiffs sued at law to recover certain described land.
The facts with respect to the right to have the writ of mandamus issue as prayed for are not disputed.
At the time of the institution of the suit the plaintiffs endorsed on the summons and complaint a demand for trial by jury. The case was tried by the court with a jury, resulting in a judgment. An appeal was taken to this Court and on that appeal the judgment was reversed and the cause remanded for another trial. Merchants National Bank v. Morris, 252 Ala. 566, 42 So.2d 240.
After the cause was reversed and remanded, and at a regular jury term of the Circuit Court of Baldwin County, the plaintiffs withdrew their demand for a jury trial in said cause. The defendants, acting by and through their attorneys in open court, consented for said jury trial to be withdrawn. It does not appear that said consent was in writing but an entry was made to that effect by the judge on the trial docket, on the basis of which a minute entry was made in the following language: "Came the parties by their attorneys and the plaintiffs, with the consent of the defendants, withdrew their demand for a jury trial of this cause. It is therefore ordered and adjudged by the court retransfer said cause from the nonjury docket of this court and continued." At a later date the defendants made a motion to retransfer said cause from the non-jury docket of said court to the jury docket. This motion was granted by the court and an order was made retransferring said cause from the nonjury to the jury docket.
The purpose of this proceeding is to review the ruling of the trial court in making said transfer to the jury docket as stated above. The first question presented for consideration in that connection is the right of petitioners to have said ruling reviewed by writ of mandamus. It has been the custom of this Court to grant such a mandamus for that purpose with respect to interlocutory orders and judgments of the court as to which an adequate remedy is not available on appeal. This procedure has been made use of in respect to the transfer of causes from the law side to the equity side of the court and vice versa. Code Title 13, sections 149-156; Edge v. Bonner, ante, p. 385, 59 So.2d 683; Ballentine v. Bradley, 236 Ala. 326, 182 So. 399.
It is provided by section 260, Title 7, Code, that all civil actions at law shall be tried and determined by the court without a jury, unless a demand therefor is made as required by its terms. In section 265, Title 7, Code, it is provided that a party demanding a trial by jury shall not have a right to withdraw such demand without the consent of the opposite party. The rights of the parties secured by those statutory provisions are subject to enforcement by mandamus in view of the fact that as a rule there would not be an adequate remedy by appeal from the final judgment. Ex parte, Ansley, 107 Ala. 613, 18 So. 242; Knight v. Farrell Reynolds, 113 Ala. 258, 20 So. 974; 55 C.J.S., Mandamus, § 93, page 151.
The withdrawal of the demand by the plaintiffs was made in open court and the defendants' counsel in open court consented to the same. We think the right of petitioners to the writ of mandamus as prayed for depends upon the effect of the consent given by defendants' counsel to the withdrawal by plaintiffs of the demand for a jury trial.
It is provided in Title 46, section 46, Code, that an attorney has authority to bind his client in any action or proceeding by an agreement in relation to the cause made in writing or by an entry made on the minutes of the court. Senn v. Joseph, 106 Ala. 454, 17 So. 543; Blackwood v. Maryland Casualty Co., 227 Ala. 343, 150 So. 180.
This agreement on the part of defendants' counsel for plaintiffs to withdraw their demand for a trial by jury was not in writing, but an entry thereof was made on the minutes of the court, as we have shown. We have no difficulty, therefore, in holding that the consent given by defendants' counsel to withdraw the plaintiffs' demand for a jury complied with the provision of Title 46, section 46, Code.
Since the adoption of the law as set forth in section 260, Title 7, Code, the right to a trial by jury in civil cases is fixed for that cause throughout its progress to a final judgment, and is not just for the particular setting of the case at a time when the requirements of such statute are complied with. The old rule, therefore, in respect to an agreement waiving a jury trial, applicable only to that trial, has no application to the present statute. We are referring now particularly to the case of Martin v. King, 72 Ala. 354.
Of course it is true, as indicated by section 265, Title 7, Code, that such status as to a jury trial which has been fixed under section 260, supra, may be changed by mutual agreement of parties entered into in such manner and form as to bind them.
Since we have come to the conclusion that the record shows that the demand for a jury trial was withdrawn by such an agreement as is authorized by section 265, supra, the provision for trial without a jury required by section 260, supra, comes into being and there is nothing in the way of granting the writ of mandamus as prayed for.
We think it unnecessary to discuss other contentions made by respondent for they do not seem to go to the merits of the controversy.
It is therefore ordered that the peremptory writ of mandamus issue as prayed for.
Writ of mandamus awarded.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur.