Rule 39. Trial by jury or by the court.
Rule 39. Trial by jury or bythe court.
(a) By jury. Whentrial by jury has been demanded and has not been withdrawn as provided in Rule38, the action shall be designated upon the docket as a jury action. The trialof all issues so demanded shall be by jury, unless
(1) The parties who havepleaded or otherwise appeared in the action or their attorneys of record, bywritten stipulation filed with the court or by an oral stipulation made in opencourt and entered in the minutes, consent to trial by the court sitting withouta jury, or
(2) The court uponmotion or of its own initiative finds that a right of trial by jury of some orall of those issues does not exist under the Constitution or statutes.
(b) By the court. Issues not demanded for trial by jury as provided in Rule 38 shall be tried bythe court; but, notwithstanding the failure of a party to demand a trial byjury in an action in which such a demand might have been made of right, thecourt in its discretion upon motion or of its own initiative may order a trialby jury of any or all issues.
(c) Advisory jury andtrial by consent. In all actions not triable of right by a jury the courtupon motion or if its own initiative may try any issue or question of fact withan advisory jury or the court, with the consent of the parties, may order atrial with a jury whose verdict has the same effect as if trial by jury hadbeen a matter of right. In either event the jury shall be selected in themanner provided by Rule 47(a). (1967, c. 954, s. 1.)