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RULE 38. JURY TRIAL OF RIGHT

July 25, 2011

RULE 38.01: RIGHT PRESERVED.

The right of trial by jury as declared by the Constitution or existing laws of the state of Tennessee shall be preserved to the parties inviolate.

RULE 38.02: DEMAND.

Any party may demand a trial by jury of any issue triable of right by jury by demanding the same in any pleading specified in Rule 7.01 or by endorsing the demand upon such pleading when it is filed, or by written demand filed with the clerk, with notice to all parties, within fifteen (15) days after the service of the last pleading raising an issue of fact.

RULE 38.03: DEMAND — CASES REMOVED TO TRIAL COURT.

In cases removed by appeal or otherwise to the chancery or circuit courts or to courts of similar jurisdiction, any party may demand a trial by jury of any issue triable of right by jury by filing written demand for jury trial within ten (10) days after the papers are filed with the clerk. If such a case is set for trial within ten (10) days after the papers are filed with the clerk, any party may make demand for jury trial when the case is called for trial. In every case removed to the chancery or circuit courts or to courts of similar jurisdiction the clerk shall promptly give notice to the appellee of the filing of the papers.

RULE 38.04: DEMAND — SPECIFICATION OF ISSUES.

In the demand a party may specify the issues which the party wishes so tried; otherwise the party shall be deemed to have demanded trial by jury of all the issues so triable. If the party has demanded trial by jury of only some of the issues, any other party within fifteen (15) days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action. Nothing in this section limits or qualifies the rights granted in Rule 38.02.

RULE 38.05: WAIVER.

The failure of a party to make demand as required by this rule constitutes a waiver by the party of trial by jury. A demand for trial by jury as herein provided may not be withdrawn without the consent of all parties as to whom issues have been joined.

Advisory Commission Comments.

38.01: The procedures described in this Rule for demanding a trial by jury were not intended or designed to abridge any constitutional or statutory right to jury trial, the Committee deeming such rights to be a matter of substantive law and not merely procedural.

38.03: The provisions of this Rule apply to cases appealed to the circuit or chancery courts. Appeals from courts of general sessions to the circuit court are the most numerous cases affected by this Rule. The last sentence of this Rule expressly provides for notice to the appellee of the filing of the papers with the clerk of the chancery or circuit court, so that the appellee shall be afforded an opportunity to make a jury demand if the appellee so desires. Since the appellant has perfected the appeal, it should be obligatory upon the appellant to ascertain when the papers have been filed with the clerk of the circuit court. The provisions of Rule 39.02, however, permit a court to allow a jury trial, in its discretion, even where the parties have failed to make a timely demand.

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