Wendling Lumber Co. v. Glenwood Lumber Co.

The only question involved herein is whether the lower court erred in denying plaintiff’s demand for a jury. The action, brought to recover the sum of $6,500 for the conversion of certain lumber, was begun on the twenty-fifth day of November, 1903, and, on the twenty-sixth day of September, 1904, was tried before Hon. H. B. Tuttle and a jury, and a verdict was rendered in favor of plaintiff. Thereafter a motion for a new trial was granted by Hon. J. R. Welch on the ground of the insufficiency of the evidence to support the verdict. .An appeal was taken and this order affirmed by the supreme court. ( 153 Cal. 411 , [ 95 Pac. 1029 ].) When the action was originally set for trial a demand was made by plaintiff for a jury, and the proper entry was made in the minutes of the court. On the twenty-fourth day of September, 1909, the case was reset and at that time no additional demand was made for a jury. The case was called for trial on the twenty-ninth day of November, 1909, there being no jury in attendance. Plaintiff then demanded a jury and deposited the requisite fee. The demand was opposed by defendant on the ground that, under a rule of the court, the plaintiff, by failure to make…