Printable Format60-239. Trial by jury or by the court. (a) When a demand is made. When a jury trial has been demanded under K.S.A. 60-238, and amendments thereto, the action must be designated on the docket as a jury action. The trial on all issues so demanded must be by jury unless:
(1) The parties or their attorneys file a stipulation to a nonjury trial, or so stipulate on the record; or
(2) the court, on motion, or on its own, finds that on some or all of those issues there is no right to a jury trial under the Kansas constitution or statutes.
(b) When no demand is made. Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded.
(c) Advisory jury; jury trial by consent. In an action not triable of right by jury, the court, on motion, or on its own:
(1) May try any issue with an advisory jury; or
(2) may, with the parties' consent, try any issue by a jury whose verdict has the same effect as if a jury trial had been a matter of right, unless the action is against the state and a state statute provides for a nonjury trial.
History: L. 1963, ch. 303, 60-239; L. 2010, ch. 135, § 108; July 1.
Source or prior law:
(a). G.S. 1868, ch. 80, §§ 266, 267; L. 1909, ch. 182, § 279; R.S. 1923, 60-2903.
(b). G.S. 1868, ch. 80, §§ 266, 267, 289; L. 1909, ch. 182, §§ 279, 296; R.S. 1923, 60-2903, 60-2920.
Cross References to Related Sections:
Right to trial by jury, see Bill of Rights, Kansas Constitution, §§ 5, 10.
Grand juries, see chapter 22, article 30.
Trials in criminal proceedings, see chapter 22, article 34.
Jury service and selection of jurors, see 43-155 et seq.
Record of excluded evidence, 60-243(c).
Findings by court, see 60-252.
Trial by masters, see 60-253(e)(3).
Trial of actions under code of civil procedure for limited actions, see 61-3202.
CASE ANNOTATIONS
Prior law cases, see G.S. 1949, 60-2903, 60-2920 and the 1961 Supp. thereto.
1. Subsection (b) mentioned; timely demand for jury not made as required in K.S.A. 60-238. Horton v. Montgomery Ward, 199 Kan. 245, 247, 429 P.2d 774.
2. Statute reaffirms principle of trial by jury in action at law. Hindman v. Shepard, 205 Kan. 207, 216, 468 P.2d 103.
3. Subsection (a)(2) cited; trial of jury issues should be by jury where demanded, unless the court upon motion, or upon its own initiative, finds that right of trial by jury does not exist under constitution and statutes. Hindman v. Shepard, 205 Kan. 207, 216, 468 P.2d 103.
4. Referred to; right to 12-man jury subject to regulation by legislature, courts and parties to case. Palmer v. Ford Motor Company, 498 F.2d 952, 954.
5. 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 Kan. App. 2d 113, 122, 603 P.2d 628.
6. Jury trial not a matter of right in quo warranto proceedings brought for ouster of public official. State ex rel. Miller v. Richardson, 229 Kan. 234, 241, 623 P.2d 1317.
7. Right to jury trial in declaratory judgment proceeding (K.S.A. 60-257) not absolute. In re Petition of City of Moran, 238 Kan. 513, 517, 518, 713 P.2d 451 (1986).
8. Nonunanimous 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 Kan. 452, 480, 856 P.2d 906 (1993).
9. Whether review of KHRC action (K.S.A. 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 Kan. 300, 318, 885 P.2d 1197 (1994).
10. Absent specific objection, participation in trial before master is a waiver of trial by jury. Schauf v. Schauf, 33 Kan. App. 2d 665, 107 P.3d 1237 (2005).