Rule 39 TRIAL BY JURY OR BY THE COURT.

• Jurisdiction: Colorado

Rule 39. Trial by Jury or by the Court.

(a) By Jury. When trial by jury has been demanded and the requisite jury fee has been paid pursuant to Rule 38, the action shall be designated upon the register of actions as a jury action. The trial shall be by jury of all issues so demanded unless (1) all parties who have demanded a trial by jury and paid the requisite jury fee and all parties who have failed to waive the right to trial by jury and paid the requisite jury fee have, in writing, waived their rights to trial by jury, or (2) the court upon motion or on its own initiative finds that a right to trial by jury of some or all of those issues does not exist, or (3) all parties demanding trial by jury fail to appear at trial.

(b) By the Court. Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court.

(c) Advisory Jury and Trial by Consent. In all actions not triable by a jury the court upon motion or on its own initiative may try any issue with an advisory jury, or, except in actions against the State of Colorado when a statute provides for trial without a jury, the court, with the consent of both parties, may order a trial with a jury.

Source: Entire rule repealed and reenacted July 12, 1990, effective September 1, 1990.

Cross references: For motion for directed verdict, see C.R.C.P. 50; for right to trial by jury, see C.R.C.P. 38.

ANNOTATION

I. General Consideration.

II. By Jury.

III. By Court.

IV. Advisory Jury and Trial by Consent.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Trials: Rules 38-53", see 23 Rocky Mt. L. Rev. 571 (1951). For article, "One Year Review of Civil Procedure and Appeals", see 38 Dicta 133 (1961). For article, "One Year Review of Civil Procedure and Appeals", see 39 Dicta 133 (1962).

Applied in Kaitz v. District Court, 650 P.2d 553 (Colo. 1982).

II. BY JURY.

Agreement of parties regarding jury trial not binding on court. The trial court is not bound by the agreement of the parties regarding a jury trial if no right to a jury trial exists. Federal Lumber Co. v. Wheeler, 643 P.2d 31 (Colo. 1981).

Although a trial court may empanel an advisory jury over the objections of a party in an equitable action, the jury's findings in such advisory capacity do not constitute final or binding resolutions of disputed issues. Rather, the court remains the ultimate fact finder and is required to make findings and conclusions in support of its judgment. First Nat. Bank of Meeker v. Theos, 794 P.2d 1055 (Colo. App. 1990).

Failure to comply with demand is no grounds for reversal where no objection. Where formal demand for jury trial is made by a party, the cause thereafter proceeds to trial by the court without a jury, and there is no objection to such trial by either party, the unsuccessful party cannot thereafter secure reversal of the judgment entered against him upon the ground that there was no formal disposition of the demand for jury trial in strict compliance with section (a) of this rule. Johnson v. Neel, 123 Colo. 377, 229 P.2d 939 (1951).

Before the issue of proximate cause can be taken from the jury, the evidence must be undisputed and such that reasonable minds could reach but one conclusion. Roth v. Stark Lumber Co., 31 Colo. App. 121, 500 P.2d 145 (1972).

For cases construing § 196 of the former code of civil procedure which was supplanted by this rule, see Leahy v. Dunlap, 6 Colo. 552, (1883); Cerussite Mining Co. v. Anderson, 19 Colo. App. 307, 75 P. 158...