United Press Associations, a Corporation v. Sidney Dean Charles, Paul S. Charles and Patricia Charles and the Pioneer Printing Company, a Corporation

This case balances upon the single question of whether a civil case involving over twenty dollars, which has been fairly and impartially tried by the court sitting with a jury, should be reversed because of a procedural technicality claimed to vitiate the order of the court calling a jury.

United Press 1 brought action for damages, setting up alleged breach of contract and loss of profit over the time the contract, according to its terms, had yet to run. Charles 2 answered alleging cancellation for breach by United Press. A counterclaim was also set up in the answer. The reply admitted this amount was due to Charles.

The jury trial was held under the circumstances hereinbelow outlined. Neither Charles nor United Press asked for a jury within ten days after the issues were made up. 3 Thereafter, Charles filed a motion for jury trial. The court denied this motion on September 24, 1954. On April 12, 1955, the court entered an order directing a jury trial sua sponte. United Press objected, but went to trial. The jury found a verdict for United Press with damages at $368.70 and a verdict for Charles on the admitted counterclaim for $368.70. Judgment was entered on these general…

(dissenting).

I find myself in agreement with much that is said in the majority opinion. Plainly both parties were anxious to go to trial, and did proceed at the time set. I certainly agree with the opinion’s encomiums for the jury system as such. Of course all experienced lawyers agree in their admiration for our system of trial by jury. But I fail to see what any of this has to do with the facts or the law of this case.

My first point of disagreement concerns the statement that by not refusing to go to trial United Press waived its objection to the court’s order for trial by jury. Under our system of trials the lawyer is permitted to record his objections, but when the ruling goes against him he is expected to conform. The court may deny his motion to dismiss, but he must answer over. It may refuse his offers of evidence, but he must try the case on what he gets in. It may reject his requested instructions, but he must argue on the basis of those given. Even in the case where what transpires warrants his motion for a mistrial, the court’s denial of the motion does not occasion his refusal to proceed. He knows his remedy lies in his right to appeal. The suggestion in the…

245 F.2d 21 17 Alaska 46 UNITED PRESS ASSOCIATIONS, a Corporation, Appellant, v. Sidney Dean CHARLES, Paul S. Charles and Patricia Charles and the Pioneer Printing Company, a Corporation, Appellees. No. 14863. United States Court of Appeals Ninth Circuit. March 1, 1957. Writ of Certiorari Denied June 17, 1957. See 77 S.Ct. 1378 . John H. Dimond, Juneau, Alaska, and Baker, Hostetler, Patterson & Wick, Cleveland, Ohio, for appellant. Faulkner, Banfield & Boochever, Juneau, Alaska, and Herbert C. Faulkner, San Francisco, Cal., for appellee. Before HEALY, POPE and FEE, Circuit Judges. JAMES ALGER FEE, Circuit Judge. 1 This case balances upon the single question of whether a civil case involving over twenty dollars, which has been fairly and impartially tried by the court sitting with a jury, should be reversed because of a procedural technicality claimed to vitiate the order of the court calling a jury. 2 United Press 1 brought action for damages, setting up alleged breach of contract and loss of profit over the time the contract, according to its terms, had yet to run. Charles 2 answered alleging cancellation for breach by United Press. A counterclaim was also set up in the…