GA Code § 9-11-38 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 11 - Civil Practice Act|Article 6 - Trials|§ 9-11-38. Right to Jury Trial

 The right of trial by jury as declared by the Constitution of the state or as given by a statute of the state shall be preserved to the parties inviolate.   (Ga. L. 1966, p. 609, § 38.)   Cross references.   - Right to trial by jury generally, Ga. Const. 1983, Art. I, Sec. I, Para. XI.    Right to trial by jury in certiorari cases in superior court, § 5-4-11.   Juries, T. 15, C. 12.   U.S. Code.   - For provisions of Federal Rules of Civil Procedure, Rule 38, and annotations pertaining thereto, see 28 U.S.C.   Law reviews.   - For article, "The Endangered Right of Jury Trials in Dispossessories," see 24 Ga. St. B.J. 126 (1988). For note, "Pre-Litigation Contractual Waivers of the Right to a Jury Trial Are Unenforceable Under Georgia Law," see 46 Mercer L. Rev. 1565 (1995).   JUDICIAL DECISIONS   Right to jury trials in most cases.    - Constitution of Georgia as well as the "Civil Practice Act" (see O.C.G.A. Ch. 11, T. 9) guarantees the right of a jury trial to civil litigants in most cases. Raintree Farms, Inc. v. Stripping Ctr., Ltd., 166 Ga. App. 848, 305 S.E.2d 660 (1983).   Right to trial by jury not conferred in all cases.    - Ga. L. 1966, p. 609, §§ 38 and 39 (see now O.C.G.A. §§ 9-11-38 and9-11-39) cannot be interpreted to mean that a person has a right to trial by jury in all cases; in this state there is no constitutional right to a trial by jury in equity cases. Duncan v. First Nat'l Bank, 597 F.2d 51 (5th Cir. 1979).    Because the Seventh Amendment to the U.S. Constitution did not apply in state courts, and an insured's right to a jury trial thereunder was not infringed when genuine issues of material fact were lacking and disposition of the matter was best handled by way of summary judgment, the insured's Seventh Amendment right to a jury trial was not infringed; as a result, the insured failed to demonstrate any constitutional deprivation warranting a 42 U.S.C. § 1983 action. Cuyler v. Allstate Ins. Co., 284 Ga. App. 409, 643 S.E.2d 783, cert. denied, 2007 Ga. LEXIS 510 (Ga. 2007).    Constitutional right to trial by jury shall not be taken away in cases when the right existed when the Constitution was adopted in 1798. Cawthon v. Douglas County, 248 Ga. 760, 286 S.E.2d 30 (1982).   Any right to jury trial in equitable proceedings must be statutory.    - Interposition of juries in the trial of chancery (equity) cases is purely a matter of legislative regulation, and originated in this state in the Judiciary Act of 1799; it is not a constitutional right or one guaranteed by the Magna Charta. Williams v. Overstreet, 230 Ga. 112, 195 S.E.2d 906 (1973).   Since there is no constitutional right to a trial by jury in equitable proceedings, such a right can exist only in instances when the right is conferred by statute. Duncan v. First Nat'l Bank, 597 F.2d 51 (5th Cir. 1979).    Legislative restriction of right of trial by jury in equity cases would be constitutional. Williams v. Overstreet, 230 Ga. 112, 195 S.E.2d 906 (1973).    There is no statutory right to trial by jury in equity cases in general. Cawthon v. Douglas County, 248 Ga. 760, 286 S.E.2d 30 (1982).    There is no right to a jury in a suit for injunction. Turner Adv. Co. v. Garcia, 251 Ga. 46, 302 S.E.2d 547 (1983).    There is no statutory right to a jury trial in garnishment proceedings. Worsham Bros. Co. v. FDIC, 167 Ga. App. 163, 305 S.E.2d 816 (1983).    Although a trial court trying a suit for injunction may empanel a jury to render special verdicts, the court is not required to do so. Turner Adv. Co. v. Garcia, 251 Ga. 46, 302 S.E.2d 547 (1983).   Enforcement of equitable lien.    - Case begun as an action to enforce an equitable lien on funds held by a defendant, and concluded as an interpleader action after the funds were paid into the registry of the court by the stakeholder, is a case in equity in which there is no right to a jury trial. Williams v. Overstreet, 230 Ga. 112, 195 S.E.2d 906 (1973).   Constitutional right to jury trial in law cases.    - In a case at common law, a party has the constitutional right to have all questions of fact passed upon by a jury, and a legislative denial of that right is unconstitutional. Williams v. Overstreet, 230 Ga. 112, 195 S.E.2d 906 (1973).   Constitutional right to jury trial in dispossessory actions.    - Georgia Constitution provides for the right of trial by jury in dispossessory actions. Hill v. Levenson, 259 Ga. 395, 383 S.E.2d 110 (1989).   Contracts.    - Cases heard on contract, when an issuable defense is filed, require trial by jury unless waived. Redding v. Commonwealth of Am., Inc., 143 Ga. App. 215, 237 S.E.2d 689 (1977).   If legal cause involved, jury trial available.   - It makes no difference if the equitable cause clearly outweighs the legal cause so that the basic issue of the case taken as a whole is equitable; as long as any legal cause is involved, the jury rights, which it creates, control. Duncan v. First Nat'l Bank, 597 F.2d 51 (5th Cir. 1979).   Dismissal for failure to state cause not contravention of right to jury trial.    - When a complaint fails to state a claim, dismissal of such claim is not error even if the complainant has made a demand for a jury trial, and does not contravene the provisions of Ga. L. 1966, p. 609, § 38 (see now O.C.G.A. § 9-11-38) or of Ga. L. 1967, p. 226, § 41 (see now O.C.G.A. § 9-11-40), nor of Ga. Const., Art. VI, Sec. XVI, Para. I (see now Ga. Const. 1983, Art. I, Sec. I, Para. XI), relating to the right to trial by jury. Bush v. Morris, 123 Ga. App. 497, 181 S.E.2d 503 (1971).    O.C.G.A. § 9-11-38 sets no time limit for demands for trial by jury, and if there is no time limit within which a demand for jury trial must be made, a demand may be made at any time before the case is called for trial, or upon the call for trial. Carleton v. State, 176 Ga. App. 399, 336 S.E.2d 333 (1985).    Local court rule requiring parties to timely appeal the adverse ruling of an arbitration board if the parties desired to pursue a jury trial did not deny the parties their constitutional right to a jury trial since the parties were given a reasonable opportunity to demand a jury trial and waived the parties' right to a jury trial by failing to file a timely demand. Tippins v. Winn-Dixie Atlanta, Inc., 192 Ga. App. 172, 384 S.E.2d 199, cert. denied, 192 Ga. App. 903, 384 S.E.2d 199 (1989).   Trial de novo after nonbinding arbitration.    - Local court rule provision that a trial de novo be available only upon demand after nonbinding arbitration did not deny the right to a jury trial. Davis v. Gaona, 260 Ga. 450, 396 S.E.2d 218 (1990).    Dismissed employee had no constitutional right to trial by jury on the employee's claim for back pay under the Georgia Equal Employment for the Handicapped Code, Ga. L. 1981, p. 1803. Smith v. Milliken & Co., 189 Ga. App. 897, 377 S.E.2d 916 (1989).   Request for jury trial in suit involving cancellation of lis pendens notice denied.    - See Snow's Farming Enters., Inc. v. Carver State Bank, 206 Ga. App. 661, 426 S.E.2d 158 (1992).    Prelitigation contractual waiver of the right to trial by jury is not enforceable in cases tried under the laws of Georgia. Bank S. v. Howard, 264 Ga. 339, 444 S.E.2d 799 (1994).   Implicit waiver of right to jury trial.    - In an auto dealer's suit against a car buyer, the buyer's waiver of the right to a jury trial under Ga. Const. 1983, Art. I, Sec. I, Para. XI(a) and O.C.G.A. § 9-11-38 was implied by the buyer's failure to make a written demand for a jury trial or to object to the case being specially set for a bench trial at a hearing on the buyer's successful motion to vacate a judgment entered in favor of the dealer. Cole v. ACR/Atlanta Car Remarketing, Inc., 295 Ga. App. 510, 672 S.E.2d 420 (2008).   Voluntary waiver required.    - Waiver of jury trial provision in bank's guaranty agreement was not enforceable against the defendant since the defendant could not have knowingly and voluntarily given up the defendant's right to trial by jury since the defendant could not have been aware of the basis and circumstances of any future claim upon the guaranty. Howard v. Bank S., 209 Ga. App. 407, 433 S.E.2d 625 (1993).   Husband did not waive right to jury trial.    - Trial court erroneously denied a husband's motion for a new trial and to set aside the decree of divorce as the husband's actions in showing up 45 minutes late in answering a calendar call did not amount to either an expressed or implied waiver of an asserted right to a jury trial, and the husband did not expressly consent to a bench trial. Walker v. Walker, 280 Ga. 696, 631 S.E.2d 697 (2006).   Waiver of right to jury trial in contempt proceeding.    - In a criminal contempt case, the trial court did not err in failing to submit the issue of financial inability to the jury because a business partner waived the partner's right to a jury trial on the issue of financial inability since the partner did not file a jury trial demand until after the evidentiary hearing had commenced and the partner had previously requested that the contempt hearing be placed on a non-jury calendar; a litigant may impliedly waive the statutory right to a jury trial by his or her conduct. Affatato v. Considine, 305 Ga. App. 755, 700 S.E.2d 717 (2010).   Right to jury trial not infringed when no issue of material fact disputed.    - Trial court did not violate a purchaser's right to a jury trial under the Georgia Constitution or O.C.G.A. § 9-11-38 by granting summary judgment to a lender because the right to a jury trial was not infringed when the jury would have no role since there were no issues of material fact in dispute. Leone v. Green Tree Servicing, LLC, 311 Ga. App. 702, 716 S.E.2d 720 (2011).   Waiver of right to jury trial in probate proceeding.    - Trial court had subject matter jurisdiction to review the probate court's decision under Ga. Const. 1983, Art. VI, Sec. IV, Para. I and O.C.G.A. § 15-6-8(4)(E) to deny probate of the decedent's 1988 will and the parties' waiver of the statutory right to a jury trial did not deprive the trial court of subject matter jurisdiction to deny probate of the will. Mosley v. Lancaster, 296 Ga. 862, 770 S.E.2d 873 (2015).   No right to jury trial.    - Trial court did not err by not holding a trial to determine entitlement to the excess funds despite the estate executor's several demands for a jury trial because under the plain language of O.C.G.A. § 48-4-5(b), it was for the trial court to apportion the excess funds according to the priority of the claimants' interests and § 48-4-5 conferred no right to a jury trial in an interpleader action resulting from a tax sale. Mancuso v. Jackson, Ga. App. , S.E.2d (May 10, 2021).    Cited in Jackson v. Jackson, 234 Ga. 587, 216 S.E.2d 808 (1975); Blanchard v. Taylor, 136 Ga. App. 237, 220 S.E.2d 757 (1975); Restler v. Haas & Dodd Realty Co., 142 Ga. App. 318, 235 S.E.2d 759 (1977); Marler v. C & S Bank, 239 Ga. 342, 236 S.E.2d 590 (1977); First Nat'l Bank v. Baker, 142 Ga. App. 870, 237 S.E.2d 233 (1977); Financial Bldg. Consultants, Inc. v. American Druggists Ins. Co., 91 F.R.D. 62 (N.D. Ga. 1981); York v. Miller, 168 Ga. App. 849, 310 S.E.2d 577 (1983); Leader Nat'l Ins. Co. v. Smith, 177 Ga. App. 267, 339 S.E.2d 321 (1985); Clements v. Continental Cas. Ins. Co., 730 F. Supp. 1120 (N.D. Ga. 1989); Meacham v. Franklin-Heard County Water Auth., 302 Ga. App. 69, 690 S.E.2d 186 (2009).   OPINIONS OF THE ATTORNEY GENERAL    No right to a jury trial exists  in a civil action for the establishment of paternity. 1997 Op. Att'y Gen. No. 97-5.   RESEARCH REFERENCES   Am. Jur. 2d.   - 47 Am. Jur. 2d, Jury, § 3 et seq. 75B Am. Jur. 2d, Trials, § 1622.   C.J.S.   - 50A C.J.S., Juries, § 4 et seq.   ALR.    - Constitutionality of statute requiring party demanding jury to pay jury fees or charges incidental to summoning or impaneling of jurors, 32 A.L.R. 865.    Constitutionality, construction, and effect of statute providing for jury trial in disbarment proceedings, 78 A.L.R. 1323.    Statutes in relation to subject-matter or form of instructions by court as impairing constitutional right to jury trial, 80 A.L.R. 906.    Right to jury trial of issues as to personal judgment for deficiency in suit to foreclose mortgage, 112 A.L.R. 1492.    Right to jury trial in suit to remove cloud, quiet title, or determine adverse claims, 117 A.L.R. 9.    Right to jury trial as to fact essential to action or defense but not involving merits thereof, 170 A.L.R. 383.   Effectiveness of stipulation of parties or attorneys, notwithstanding its violating form requirements, 7 A.L.R.3d 1394.   Right to a jury trial on motion to vacate judgment, 75 A.L.R.3d 894.   Withdrawal or disregard of waiver of jury trial in civil action, 9 A.L.R.4th 1041.   Validity of law or rule requiring state court party who requires jury trial in civil case to pay costs associated with jury, 68 A.L.R.4th 343.   Contractual jury trial waivers in state civil cases, 42 A.L.R.5th 53.