Condon v. Gore Ex Rel. Gorre

Schmucker, J., delivered the opinion of the Court. This is an appeal from an order of the Baltimore City Court overruling a motion made by the appellant, who was defendant below, to place the case upon the non-jury docket. The record presents for determination the single question ²³¹ whether the appellee, who was plaintiff below, elected, within the meaning of the 50th Rule of the Supreme Bench of Baltimore City, to have his case tried before' a jury. The amendment to the Constitution of this State, acted on by the General Assembly of 1892, and afterwards adopted by the people, authorized the Supreme Bench of Baltimore City to provide by its rules for requiring cases in the Courts of Baltimore City to be tried before the Court without a jury, unless the litigants or some one of them should, within such reasonable time or times as might be prescribed, elect to have their cases tried before a jury.

In pursuance of the power thus conferred on them the Supreme Bench adopted Rule No. 50, which puts the constitutional amendment into operation and prescribes in detail how the right to elect a jury trial must be exercised by parties to a suit desiring to avail themselves of that privilege. The rule requires the election to be made in writing and provides that when the plaintiff desires a jury trial the election must be made by him not later than fifteen days after the filing of the declaration. It also directs the Clerk to keep a separate trial docket for non-jury cases and to enter each case thereon as soon as it is ascertained that it will not be tried by a jury. This amendment to the Constitution, and the rules of the Supreme Bench adopted in pursuance of it, came before this Court for consideration in the case of the City Passenger R. R. Co. v. Nugent, in 86 Md. 360 , and we then determined that it was the obvious intent of the rule that an election for a trial by jury should be a separate and distinct act, evidenced by a writing distinct from the pleadings, so that no change* in the latter could interfere with or affect the former.

In that case a prayer for a jury trial was filed by the plaintiff and was included in and made part of the declaration, appearing therein immediately after the claim for damages. That prayer was held bad by us because it formed no proper part of the declaration, which is simply the statement of the plaintiff’s cause of action and has nothing to do with the ²³² mode of trial, and also because of the impropriety of permitting a claim for a trial by jury to be merged in one of the pleadings and thus compelling the Clerk to examine all of the pleadings to ascertain whether somewhere among, them there might be found a claim for a jury trial. In the case at bar there appeared in the body of the declaration a prayer for a jury trial in the same form as in Nugent's case, which, under the ruling there made, must be held bad. On the outside of the cover to the declaration, which consisted of a separate sheet of paper, the suit and Court were properly entitled and underneath the title ^as written the following direction: “Mr. Clerk — Please file this declaration and notice to plead and mark the case for a iury trial',' which was signed by the plaintiff’s counsel.

Although we think the proper practice for the party to a suit in one of the Courts of Baltimore City, who elects to have his case tried by a jury, is to file at the proper time a separate written statement of his election for such a trial, entitled in the case and signed by him or his counsel, we cannot say that the written direction, used .by the plaintiff in the case at bar, to the Clerk, to mark the case for a jury trial, did not constitute an election by him, within the 50th Rule of the Supreme Bench, to have his case tried by a jury. It was not, it is true, a direct statement by the plaintiff that he elected to have a jury trial, but it was in effect a declaration by him in writing of his desire for that form of trial, and constituted a substantial compliance with the terms of