Hopkins

This is an appeal by plaintiffs from a judgment in favor of the defendant, rendered by the court sitting without a jury, in a trial held ¡after plaintiffs’ demand for a jury trial had been denied.

This appeal presents just one question, viz., did the court err in denying plaintiffs’ demand for a jury trial?

On March 21, 1929, the attorney for the plaintiffs wrote the clerk of San Diego County asking if it was necessary to make a deposit for jury fees at the time of filing the memorandum of motion to set this cause for trial and on March 25th received from the clerk a reply stating that $36 must be deposited as jury fees at least six days prior to the date of the trial. This was the rule in San Diego County prior to the amendment to section 631 of the Code of Civil Procedure, which went into effect in August, 1929. Under rule V, adopted by the Judicial Council, the Superior Court of San Diego County has a “Civil Active List” and a “Civil Trial List” of cases pending for trial, and by inadvertence this cause was set on the “Civil Trial List” on October 10, 1929, but no notice of this setting was ever served upon the plaintiffs or their attorney. By consent of plaintiffs the case…