KANSAS OFFICE of
  REVISOR of STATUTES

  

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60-238. Right of trial by jury; demand; waiver. (a) Right preserved. The right of trial by jury as declared by section 5 of the bill of rights in the Kansas constitution, or as provided by a state statute, is preserved to the parties inviolate.

(b) Demand. On any issue triable of right by a jury, a party may demand a jury trial by:

(1) Serving the other parties with a written demand, which may be included in a pleading, no later than 14 days after the last pleading directed to the issue is served; and

(2) filing the demand in accordance with K.S.A. 60-205, and amendments thereto.

(c) Specifying issues. In its demand, a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may, within 14 days after being served with the demand or within a shorter time ordered by the court, serve a demand for a jury trial on any other or all factual issues triable by jury.

(d) Waiver; withdrawal. A party waives a jury trial unless its demand is properly served and filed, but the court may set aside a waiver of a jury trial in the interest of justice or when the waiver inadvertently results. A proper demand may be withdrawn only if the parties consent.

History: L. 1963, ch. 303, 60-238; L. 1997, ch. 173, § 21; L. 2010, ch. 135, § 107; July 1.

Source or prior law:

(a). G.S. 1868, ch. 80, §§ 266, 267; L. 1909, ch. 182, §279; R.S. 1923, 60-2903.

(d). G.S. 1868, ch. 80, §§ 266, 267, 289; L. 1909, ch. 182,§§ 279, 296; R.S. 60-2923, 60-2903, 60-2920.

Cross References to Related Sections:

Declaratory judgments, procedure, 60-257.

Judgment by default, statutory rights, 60-255(a).

Motion for judgment as a matter of law, effect, 60-250.

Special verdicts, waiver of right, 60-249(a).

Trial by jury in limited actions, see 61-3202.

Grand juries, see ch. 22, art. 30.

Trials in criminal proceedings, see ch. 22, art 34.

Jury service and selection of jurors, see 43-155 et seq.

Right to speedy public trial by impartial jury in criminal prosecutions, see Bill of Rights, Kan. Const., § 10.

Law Review and Bar Journal References:

Cited in discussing appeal from hearing under Kansas act against discrimination (K.S.A. 44-1001 et seq.), Charles N. Henson, 35 J.B.A.K. 95, 150 (1966).

"Administrative Law: Judicial Review of No Probable Cause Determinations," Jan E. Montgomery, 18 W.L.J. 335, 338 (1979).

"The Kansas Residential Construction Defect Act: A Schematic Blueprint for Repairs," Wyatt A. Hoch, 74 J.K.B.A. No. 3, 20 (2005).

"The Kansas Residential Construction Defect Act: A Schematic Blueprint for Repairs," Wyatt A. Hoch, 74 J.K.B.A. No. 3, 20 (2005).

CASE ANNOTATIONS

Prior law cases, see G.S. 1949, 60-2903, 60-2920 and the 1961 Supp. thereto.

1. Timely demand for jury not made; right to jury trial waived. Horton v. Montgomery Ward, 199 K. 245, 246, 247, 429 P.2d 774.

2. In statutory remedy of garnishment, issues of fact are triable to court; jury trial may not be demanded as a matter of right. Bollinger v. Nuss, 202 K. 326, 342, 449 P.2d 502.

3. Statute reaffirms principle of trial by jury in action at law. Hindman v. Shepard, 205 K. 207, 216, 468 P.2d 103.

4. Discussed as to right to jury generally; relation to section making 12-member jury mandatory in civil cases. Bourne v. Atchison, Topeka and Santa Fe Railway Company, 209 K. 511, 513, 497 P.2d 110.

5. Jury request by insurance company; held request complied with requirements of subsection (b). Clayton v. Alliance Mutual Casualty Co., 212 K. 640, 652, 512 P.2d 507. Rehearing denied: 213 K. 84, 515 P.2d 1115.

6. Demand filed hereunder; order placing case on nonjury list vacated on request. Reliance Insurance Companies v. Thompson-Hayward Chemical Co., 214 K. 110, 114, 519 P.2d 730.

7. Applied; right to 12-man jury not substantive law; subject to regulation by legislature, courts and parties to case. Palmer v. Ford Motor Company, 498 F.2d 952, 954.

8. Provisions of 44-1011 requiring trial de novo on appeal construed and upheld; trial limited to issues raised in rehearing application. Stephens v. Unified School District, 218 K. 220, 230, 231, 232, 546 P.2d 197.

9. Failure to timely request jury trial acts as waiver of right thereto; no denial of due process. Mansfield Painting and Decorating, Inc. v. Budlaw Services, Inc., 3 K.A.2d 77, 83, 589 P.2d 643.

10. If an action is essentially equitable, compulsory counterclaims containing legal issues do not entitle party to a jury trial. First Nat'l Bank of Olathe v. Clark, 226 K. 619, 622, 602 P.2d 1299.

11. Cited; suits in equity are not entitled to jury trial as a matter of right. McMurray v. Crawford, 3 K.A.2d 329, 330, 594 P.2d 1109.

12. Provisions implement guarantee contained in § 5 of Kansas Bill of Rights; no error to deny jury trial in action for peaceable entry and forcible detainer. Koerner v. Custom Components, Inc., 4 K.A.2d 113, 122, 603 P.2d 628.

13. Court did not abuse its discretion by not ordering a jury trial after appellant waived such right. Scantlin v. Superior Homes, Inc., 6 K.A.2d 144, 146, 627 P.2d 825.

14. Court will review action of administrative agency if there is no evidentiary jury trial at agency hearing or on appeal. Woods v. Midwest Conveyor Co., 231 K. 763, 774, 648 P.2d 234 (1982).

15. Whether an act is unconscionable is a question of law under 50-627; whether an act is deceptive is a jury question under 50-626. Waggener v. Seever Systems, Inc., 233 K. 517, 520, 664 P.2d 813 (1983).

16. Cited; court may allow additional evidence in trial de novo in appeal under 44-1011. Nurge v. University of Kansas Med. Center, 234 K. 309, 312, 674 P.2d 459 (1983).

17. Right to jury trial in declaratory judgment proceeding (60-257) not absolute. In re Petition of City of Moran, 238 K. 513, 517, 518, 713 P.2d 451 (1986).

18. Trial court erred in denying jury trial where equitable claims dropped and timely requests for jury trial never withdrawn. Carnes v. Meadowbrook Executive Bldg. Corp., 17 K.A.2d 292, 297, 836 P.2d 1212 (1992).

19. Nonunamimous verdict upheld in breach of warranty suit where plaintiffs served dishwashing liquid rather than similar-looking alcoholic beverage. Cott v. Peppermint Twist Mgt. Co., 253 K. 452, 480, 856 P.2d 906 (1993).

20. Whether review of KHRC action (44-1011(b)(3)) is a "statute of the state" providing right to jury trial upon demand examined. Wagher v. Guy's Foods, Inc., 256 K. 300, 318, 321, 885 P.2d 1197 (1994).


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