Bishop

The Bishops appeal from a judgment entered in favor of respondent Arthur Anderson, M.D., in an action for damages arising from malpractice. After denying appellants’ request for trial by jury, the trial judge heard the case and determined that the Bishops’ suit was barred by the statute of limitations. Here, appellants raise several questions with respect to respondent’s statute of limitations defense and in addition, they challenge the trial court’s refusal to allow a jury trial. The jury trial issue is dispositive.

Appellants filed an at-issue memorandum on August 25, 1977, in which they answered “no” to the question of whether a jury trial was requested. Two days later, respondent requested a jury trial in his at-issue memorandum. On the day set for trial, April 24, 1978, respondent waived his right to have the matter heard by a jury. The Bishops immediately requested that the court exercise its discretion and afford them a jury trial. Counsel for respondent indicated that his client’s rights would not be prejudiced by a jury trial. Nonetheless, appellants’ request was denied.

A negative response in an at-issue memorandum to the question of whether a jury trial was…