Opinion
No. 11096.
November 15, 1976.
APPEAL FROM TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF LIVINGSTON, STATE OF LOUISIANA, HONORABLE BURRELL J. CARTER, J.
J. R. Schmidt, Hammond, for plaintiff.
Boris F. Navratil, Breazeale, Sachse Wilson, Baton Rouge, for defendant.
Before ELLIS, CHIASSON and PONDER, JJ.
Supervisory writs have been granted in this case for a determination of whether the defendants are entitled to a trial by jury.
Article 1732 of the Code of Civil Procedure provides:
"A party may demand a trial by jury of any issue triable of right by a jury in a pleading filed not later than ten days after the service of the last pleading directed to such issue."
On April 26, 1976, the defendants with leave of the District Court filed and amended answer and third party petition. Seven days later, on May 3, 1976, the defendants filed a motion for a trial by jury. The District Court on August 10, 1976, denied the defendants' motion on the grounds that defendants' pleading of April 26, 1976, was not directed to any "issue" triable by a jury. "Issue" was defined by the District Court as "a single, certain and material point, deduced by the pleadings of the parties which is affirmed on one side and denied on the other." Black's Law Dictionary.
Defendants' amended answer pleads as an affirmative defense that the defendants are entitled to an off-set for previous payments of $14,653.03 against any judgment awarded the plaintiff. In their third party petition defendants ask for contribution from their co-defendants because of concurrent and contributory negligence as to any judgment in favor of the plaintiff which may be rendered against them. The record does not contain admissions by either the plaintiff or co-defendants that the defendants are entitled to the relief they seek in their pleading.
Defendants' amended answer and third party petition present "issues" which can be controverted and are triable by jury. Therefore, defendants' motion for a jury trial was timely filed.
IT IS ORDERED, ADJUDGED AND DECREED that defendants' application for writs of certiorari and mandamus be made absolute and the Honorable Burrell J. Carter, Judge of the Twenty-First Judicial District Court for the Parish of Livingston is hereby ordered and directed to grant a jury trial in the above captioned matter.
The case is remanded to the District Court for further proceedings in accordance with the above holding. Cost to be paid by respondents.
REMANDED.