Rule 38.05: Waiver.



The failure of a party to make demand as required by this rule constitutes a waiver by the party of trial by jury. A demand for trial by jury as herein provided may not be withdrawn without the consent of all parties as to whom issues have been joined.

Advisory Commission Comments.

38.01: The procedures described in this Rule for demanding a trial by jury were not intended or designed to abridge any constitutional or statutory right to jury trial, the Committee deeming such rights to be a matter of substantive law and not merely procedural.

38.03: The provisions of this Rule apply to cases appealed to the circuit or chancery courts. Appeals from courts of general sessions to the circuit court are the most numerous cases affected by this Rule. The last sentence of this Rule expressly provides for notice to the appellee of the filing of the papers with the clerk of the chancery or circuit court, so that the appellee shall be afforded an opportunity to make a jury demand if the appellee so desires. Since the appellant has perfected the appeal, it should be obligatory upon the appellant to ascertain when the papers have been filed with the clerk of the circuit court. The provisions of Rule 39.02, however, permit a court to allow a jury trial, in its discretion, even where the parties have failed to make a timely demand.

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