Weber Electric Company v. Tuminelly, Inc.

This is an appeal by a third-party defendant, Dorso Trailer Sales, Inc., from an order denying it a new trial. The only issue is whether it was error not to grant appellant a jury trial. We hold that it was and reverse.

It is undisputed that both a jury trial and a court trial were designated in various notes of issue. Although the respondent third-party plaintiff supports appellant’s contention that appellant had specifically asked the court for a jury trial, the court had no recollection of the motion and the record was silent on the subject.

Rule 38.01, Rules of Civil Procedure, entitled the…