Federal Procedure – Trial Practice – Not Reversible Error for Trial Judge to Summon Jury Sua Sponte After Waiver

Plaintiff instituted this action for breach of contract and defendant counterclaimed. Neither party demanded a jury trial during the period in which it was claimable as of right. Subsequently defendant moved for a jury trial. The motion was denied and was never renewed. Seven months later, on the eve of the trial, the court issued an order sua sponte for a jury trial. Plaintiff’s objection was overruled. The jury awarded damages to plaintiff in the same amount as the conceded counterclaim. On appeal, held, affirmed, one judge dissenting. Although the trial judge’s action in calling a jury on his own motion may have been erroneous, it did not constitute reversible error. United Press Associations v. Charles, (9th Cir. 1957) 245 F. (2d) 21, cert. den. 354 U.S. 925 (1957).