Price, Gaulkin and Foley. The opinion of the court was delivered by Foley, J.A.D.
Defendant, C. Campbell Stiles appeals from a final judgment in the amount of $500 entered in the Essex County District Court after a non-jury trial. The sole ground of appeal is that the district court erred in denying defendant's application for a jury trial.
On April 14, 1959 plaintiff filed a complaint in the district court; service of process on all defendants was made on April 16, 1959. In accordance with R.R. 7:5-4(a) defendant was required to file an answer or enter an appearance not later than May 6, 1959. Neither step having been taken, the clerk of the court entered a default on May 7, 1959. On the same date defendant mailed to the court an appearance and demand for jury enclosing the fee therefor. R.R. 7:8-2(a) provides:
"In actions commenced in the county district court a demand for jury shall be made in writing and filed with the clerk, at the principal location of the court, not later than 10 days after the time provided for the defendant to appear or answer; or in the case of a counterclaim the plaintiff may demand a jury not later than
10 days after the time provided for the service of a defensive pleading to such counterclaim."
The appearance and demand were received by the clerk on May 9 and were returned to defendant, presumably because of the existing default.
On May 22 a consent order was entered which provided that the default be "vacated" and that defendant have ten days from the date of the order "to enter an appearance or otherwise plead to the complaint." On May 26 the clerk received from defendant an entry of appearance and demand for jury trial dated May 22. The appearance was entered by the clerk but the jury fee was returned with the explanation that the presiding judge had directed him to advise defendant that the time for filing a jury demand had expired. Defendant then formally moved for a trial by jury. The position taken by the movant was that under the applicable rule he was entitled to a jury trial as a matter of right and so the discretion of the court was not involved. The motion was denied; the court later filed conclusions of law in support of its decision. The trial court reasoned that the provision in the order of May 22 that the defendant might "otherwise plead to the complaint" did not include a demand for jury, hence the time in which such demand could be made expired on May 16 (ten days after the date originally limiting the time for filing an appearance or an answer). More important, the court concluded that it was without authority to extend the time for jury demand.
The defendant argues that both jury demands, received by the clerk on May 9 and May 26, respectively, were timely. As to that of May 9 he contends that since it was filed within ten days of the expiration of the time for the original appearance or answer, it should have been honored notwithstanding that a default had properly been entered against him. We think otherwise. We believe that in providing for the filing of a jury demand not later than ten days after the time fixed for appearance or answer the rule makers contemplated that an answer or appearance would
be on file when the demand was made. In 17 New Jersey Practice (District and Municipal Court) , § 851, p. 449, Judge Fulop writes:
"Formerly a default in the district courts was referred to as a 'no appearance' and that term is still frequently used. It is an interlocutory judgment, which bars defenses and eliminates the necessity for notifying the defaulting party of further proceeding in the action, * * *."
We are satisfied that the defendant's right to demand a jury trial did not survive the default entered on May 6. Plainly no useful purpose would be served if a litigant ...