
    Charles A. Kilvert et al. vs. Superior Court. Same vs. Same.
    JUNE 23, 1932.
    Present: Stearns, C. J., Rathbun, Sweeney, Murdock, and Hahn, JJ.
   Per Curiam.

These are petitions for writs of certiorari and mandamus. The question presented is practically the same as was considered in the recent case of Orr v. Superior Court, 52 R. I. 335.

Neither party claimed a jury trial before assignment day as required by the statute. The case was assigned for trial several times on the jury trial calendar and was finally tried before a jury. A verdict for the plaintiff was set aside by the trial justice and a new trial granted. Thereafter the parties entered into the following stipulation: “Case assigned for trial to March 21, 1932, for trial by jury on the regular calendar.” After this stipulation had been filed, one of the assistant clerks of the Superior Court discovered that no claim for jury trial had been made — a fact which appears to have escaped the attention of all concerned — and refused to place the case on the jury trial calendar.

The plaintiff then moved to assign the cases for trial on the miscellaneous calendar which motion was denied. The defendant in the original action contends that the plaintiff, by consenting and participating in a trial by jury, has waived his right to have the case tried without a jury.

In Orr v. Superior Court, supra, we held that the form of trial of a case is determined at its assignment-day and that, if a jury trial is waived, it cannot be revived by agreement of the parties. The fact that through mistake there has been a trial of the case by a jury does not differentiate it from Orr v. Superior Court, supra. The mistake in the present case was simply carried one step farther. The record of the Superior Court of April 30, 1932, wherein the plaintiff’s motion to assign the case for trial on the miscellaneous calendar was denied, is quashed.

The petition for a writ of mandamus is denied, as it is not to be assumed that the Superior Court will fail to act in accordance with this opinion.

Hinckley, Allen, Tillinghast, Phillips & Wheeler, S. Everett Wilkins, Jr., for petitioners.

Greenough, Lyman & Cross, Edward G. Fletcher, George Paul Slade, for respondent.  