Goldmann, Foley and Kilkenny. The opinion of the court was delivered by Goldmann, S.j.a.d.
Initially, this was an appeal from an interlocutory order of the Law Division denying the motion of the original plaintiff, Algernon T. Sweeney, to strike defendant's demand for a jury trial. The original action was a simple one: Sweeney sued for a fee allegedly due for legal services rendered the partnership consisting of one Eisenstodt and defendant, who were engaged in the plumbing and heating business. He claimed he had been fraudulently induced to give up the proceeds of a federal district court judgment, thus losing his right to an attorney's lien. Defendant counterclaimed for the value of plumbing services performed at plaintiff's request.
Sweeney's reply in answer to the counterclaim was filed April 1, 1959. More than two months later, on June 11, defendant filed and served a demand for a jury trial. Sweeney promptly moved to strike this demand. His motion was denied and the appeal followed.
It is unnecessary for the purpose of this opinion to relate all the changes in pleadings and issues which have taken place since we gave leave to appeal from the denial of plaintiff's motion to strike defendant's demand for a jury trial. Defendant has twice moved before us to dismiss the appeal. These motions were denied without prejudice, and on the second occasion we remanded the matter to the Law Division in order that the pleadings might reflect Sweeney's death and the substitution of proper parties, as well as the present issues in the case. Defendant was given the right to demand a jury trial on the supplemental pleadings filed by the substituted plaintiff. The Law Division was directed to resolve all motions "relating to the technical legal propositions and questions pertaining to the amended or supplemental pleadings filed
by the plaintiff-appellant, including the right to jury trial, the problem of the status of the substituted plaintiff, the questions of mootness, survival of the cause of action, and the assignability of the cause of action set forth in the amended or supplemental pleadings." After determining these matters the Law Division was to pretry the action prior to returning the cause to this court.
The trial court, among other things, dismissed without prejudice defendant's motion to strike the supplemental complaint on the grounds set forth in his motion, and denied without prejudice plaintiff's motion to strike certain defenses raised in defendant's supplemental answer, as well as for judgment on the pleadings dismissing both counts of defendant's supplemental counterclaim. The trial court also dismissed by consent plaintiff's third cause of action, described as "based on tort and founded on alleged fraud on the part of the defendant."
Defendant seeks a full adjudication of the legal issues involved in the case, claiming that unless this is done now, the same issues can and probably will be disputed at the trial. Prior to oral argument we notified both sides that all of the legal issues would be heard and resolved on this appeal. The parties consented to this procedure.
We deal first with the interlocutory order which initiated this appeal -- the order denying plaintiff's motion to strike defendant's jury demand. In the statement of proceedings settled and approved by the trial court several months after that order was entered, the court said:
"Counsel for the plaintiff, the moving party, argued that under R.R. 4:39-1 the demand for a jury trial had to be made not later than ten days after the service of the last pleading directed to the issue; that the ten day period provided in the rule was mandatory and that, absent a demand within the said ten day period, there was an automatic waiver of the right by virtue of R.R. 4:39-3.
Counsel for the defendant admitted that his demand for a jury trial was not made within the time set forth in R.R. 4:39-1; that the failure to make timely demand was due to his own neglect; that in preparing to answer plaintiff's interrogatories he referred to
the pleadings and then for the first time realized he had not demanded a jury trial.
The court found that defendant-counsel's failure to make timely demand for a jury trial constituted excusable neglect and in the interest of justice in accordance with R.R. 1:27A and 1:27B relaxed the application of R.R. 4:39-1 and 4:39-3, and denied the plaintiff's motion by order dated July 10, 1959."
Plaintiff's motion to strike the jury demand should have been granted. Defendant admitted that the demand had not been made within the ten-day period fixed by R.R. 4:39-1. R.R. 4:39-3 states that failure of a party to serve a timely demand "shall constitute a waiver by him of trial by jury." However, relief is available under R.R. 1:27B which provides that when an act is required or allowed to be done at or within a specified time, the trial court may "for cause shown" at any time in its discretion and upon motion, "permit the act to be done after the expiration of the specified period if the failure to act was the result of excusable neglect." In 5 Moore, Federal Practice , § 39.09, p. 715 et seq. (1951), the author notes that appellate courts have normally refused to interfere where a party requests relief from waiver of jury trial. The court's discretion should never be exercised unless there appears ...