Rule 38. Jury Trial of Right

• Library: South Carolina Rules Annotated (SCBar) (2020 Ed.)

RULE 38. JURY TRIAL OF RIGHT

(a) Right Preserved.

The right of trial by jury as declared by the Constitution or as given by a statute of South Carolina shall preserved to the parties inviolate. Issues of fact in an action for the recovery of money only or of specific real or personal property must be tried by a jury, unless a jury trial be waived.

(b) Demand.

Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be endorsed upon a pleading of the party.

(c) Same: Specification of Issues.

In his demand a party may specify the issues which he wishes so tried; otherwise he shall be deemed to have demanded trial by jury for all the issues so triable. If he has demanded trial by jury for only some of the issues, any other party within 10 days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action.

(d) Waiver.

The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties, except where an opposing party is in default under Rule 55(a).

Notes:

This Rule 38 is substantially the Federal Rule. The last sentence is added to Paragraph 38(a) to preserve the language of Code §15-23-60. Paragraph 38(e) of the Federal Rule, referring to admiralty and maritime claims, is inapplicable to State practice.

Annotations Rule 38

38

Determination

"The right to a jury trial is determined according to the main purpose of the suit. A plaintiff is entitled to a jury trial in a nuisance action if the main purpose of the suit is to secure damages." Baughman v. American Telephone & Telegraph Co., 298 S.C. 127, 129, 378 S.E.2d 599, 601 (1989).

Generally

The South Carolina Constitution preserves the right of trial by jury only in those cases in which parties would have been entitled to it at the time of the adoption of the Constitution. "Generally, the relevant question in determining the right to trial by jury is whether an action is legal or equitable; there is no right to trial by jury for equitable actions." Whether an action is legal or equitable is...