WEBER ELECTRIC CO. v. TUMINELLY, INC

New trial — grounds — denial of jury trial.

PER CURIAM.

This is an appeal by a third-party defendant, Dorso Trailer Sales, Inc., from an order denying it a new trial. The only issue is whether it was error not to grant appellant a jury trial. We hold that it was and reverse.

It is undisputed that both a jury trial and a court trial were designated in various notes of issue. Although the respondent third-party plaintiff supports appellant's contention that appellant had specifically asked the court for a jury trial, the court had no recollection of the motion and the record was silent on the subject.

Rule 38.01, Rules of Civil Procedure, entitled the parties to a jury trial unless the right was waived under Rule 38.02. The latter provision specifies the manner of waiver as follows:

"In actions arising on contract, and by permission of the court in other actions, any party thereto may waive a jury trial in the manner following:

(1) By failing to appear at the trial;

(2) By written consent, by the party or his attorney, filed with the clerk;

(3) By oral consent in open court, entered in the minutes."

Under the circumstances, we conclude that the appellant has not consented to waive a jury and should have been granted a new trial.

Reversed.