Reporter notes
are not on-line
Also note that Article XV below says
"heretofore been otherways used
and practiced". Common Law, at
the signing of the MA Constitution,
did not settle divorce in courts of
equity; it was done in courts of common
law according to a very strict formula/set
of RIGHTS.
RULE 38. JURY TRIAL OF RIGHT
(a) Right Preserved. The right of
trial by jury as declared by Part
1, Article 15 of the Constitution
of this Commonwealth or as given by
a statute shall be preserved to the
parties inviolate.
(b) Demand. Any party may demand a
trial by jury of any issue triable
of right by a jury by serving upon
the other parties a demand therefor
in writing at any time after the commencement
of the action and not later than 10
days after the service of the last
pleading directed to such issue. Such
a demand may be endorsed upon a pleading
of the demanding party. In an action
transferred, retransferred, removed
or appealed from a District Court
or the Municipal Court of the City
of Boston, a demand for a trial by
jury by a party entitled of right
thereto shall be made in accordance
with the statute governing such transfer,
retransfer, removal, or appeal; but
if the statute makes no provision
for such demand, he shall be deemed
to have waived such right unless within
10 days after the entry of the action
in the Superior Court he files such
demand therein.
(c) Same: Specification of Issues.
In his demand a party may specify
the issues which he wishes so tried;
otherwise he shall be deemed to have
demanded trial by jury for all the
issues so triable. If he has demanded
trial by jury for only some of the
issues, any other party within 10
days after service of the demand or
such lesser time as the court may
order, may serve a demand for trial
by jury of any other or all of the
issues of fact in the action.
(d) Waiver. The failure of a party
to serve a demand as required by this
rule and to file it as required by
Rule 5(d) constitutes a waiver by
him of trial by jury. A demand for
trial by jury made as herein provided
may not be withdrawn without the consent
of the parties.
(e) District Court. This rule is inapplicable
to proceedings in the District Court
unless otherwise provided by statute.
Amended June 27, 1974, effective July
1, 1974; May 3, 1996, effective July
1, 1996.
Article XV. In all controversies concerning
property, and in all suits between
two or more persons, except in cases
in which it has heretofore been otherways
used and practiced, the parties have
a right to a trial by jury; and this
method of procedure shall be held
sacred, unless, in causes arising
on the high seas, and such as relate
to mariners' wages, the legislature
shall hereafter find it necessary
to alter it. [See Amendments, Art.
XLVIII, The Initiative, II, sec. 2].
-------------- Original message ----------------------
From: "Barbara C. Johnson"
<barbaracjohnson@WORLDNET.ATT.NET
#2 Merger of common and equity
See Reporters Notes to Rule
38.
Cimini Family wrote:
Demand a Jury Trial per Baldwin
v. Foster, 138 Mass. 44. If they
once allowed jury trial then
they must allow it now or you have
a
Federal claim. Extract from
my Federal pleading:
13.) There is established case
law in the Commonwealth that permits
jury trial over the issue of
child support. In Baldwin v. Foster,
138 Mass. 449, a jury trial
award for disputed child support was
overturned by Justice Holmes
since the Father was the innocent
party
in the divorce. The State is
not at liberty to remove the right
to
a trial by jury. Baldwin, supra,
clearly showed that the jury trial
had been a right for disputed
child support amounts in the Commonwealth.
Can not go from Common Law
rights to Equitable Law. Rights do
not
diminish. See tonights postings
on jury trial rights.
-=-=-
... "Single acts of tyranny
may be ascribed to the accidental
opinion of a day; but a series
of oppressions, begun at a
distinguished period, and pursued
unalterably through every change
of ministers, too plainly prove
a deliberate systematical job of reducing
us to slaves."
-- Thomas Jefferson
* TagZilla (http://tagzilla.mozdev.org)
Need help I am going in this
Friday. X wifes attorney is filing
a
contempt even though I am in
dor and they (dor)are following the
court order.
Mark
--
Barbara C. Johnson, Advocate
of Court Reform and Attorney at Law
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
email: barbaracjohnson@worldnet.att.net
False Allegations:
http://www.falseallegations.com
Participating Attorney:
http://www.lawguru.com/cgi/bbs2/user/browse.shtml
Campaign 2002: http://www.barbforgovernor.com
-----
The judicial system is very
broken. It must be fixed.
There are four people who can
do the job:
Everybody, Somebody, Anybody,
and Nobody.
Everybody thinks Somebody will
surely do it.
It is a job Anybody can do.
But Nobody is doing it.
At least I'm trying. What are
you doing?
"Women are not men's life
partners, but rivals favored by law."
Paul Craig Roberts, in "The
Wars We Can't Afford to Lose,"
citing Professor Richard T.
Hise, The War Against Men
----------------------------------------------------------
RULE 39. TRIAL BY JURY OR BY THE COURT
(a) By Jury. When trial by jury has
been demanded as provided in Rule
38, the action shall be designated
upon the docket as a jury action.
The trial of all issues so demanded
shall be by jury, unless (1) the parties
or their attorneys of record, by written
stipulation filed with the court or
by an oral stipulation made in open
court and entered in the record, consent
to trial by the court sitting without
a jury as to some or all of the issues
or (2) the court upon motion or of
its own initiative finds that a right
of trial by jury of some or all of
those issues does not exist under
the constitution or statutes of this
commonwealth.
(b) By the Court. Issues not demanded
for trial by jury as provided in Rule
38 shall be tried by the court; but
notwithstanding the failure of a party
to demand a jury in an action in which
such a demand might have been made
of right, the court in its discretion
upon motion may order a trial by jury
of any or all issues.
(c) Framing Jury Issues. In all actions
not triable of right by a jury, the
court, except where otherwise provided
by law, may upon motion frame issues
of fact to be tried by a jury.
(d) District Court. This rule is inapplicable
to proceedings in the District Court
unless otherwise provided by statute.
Amended May 3, 1996, effective July
1, 1996.
-------------- Original message ----------------------
From: "Barbara C. Johnson"
<barbaracjohnson@WORLDNET.ATT.NET
Divorces used to be in Superior
or P&F Ct. Mid-80s changed to
P&F only.
P&F Rule 38, Jury Trial
of Right, deleted from P&F. Still
in R.Civ.P.
See Rule 39, Trial by Jury or
by the Court. This is still possible
but RARE.
READ THE RULES!!!!!!!!!!!!!!!!!!!!!!!!!!
Cimini Family wrote:
Demand a Jury Trial per Baldwin
v. Foster, 138 Mass. 44. If they
once allowed jury trial then they
must allow it now or you have a
Federal claim. Extract from my Federal
pleading:
13.) There is established case
law in the Commonwealth that permits
jury trial over the issue of
child support. In Baldwin v. Foster,
138 Mass. 449, a jury trial
award for disputed child support was
overturned by Justice Holmes
since the Father was the innocent
party in the divorce. The State
is not at liberty to remove the right
to a trial by jury. Baldwin,
supra, clearly showed that the jury
trial had been a right for
disputed child support amounts in
the Commonwealth. Can not go
from Common Law rights to Equitable
Law. Rights do not diminish. See tonights
postings on jury trial rights.
MARK PARRY wrote:
-=-=-
... "Single acts of tyranny may
be ascribed to the accidental opinion
of a day; but a series of oppressions,
begun at a
distinguished period, and pursued
unalterably through every change of
ministers, too plainly prove a deliberate
systematical job of reducing us to
slaves."
-- Thomas Jefferson
* TagZilla (http://tagzilla.mozdev.org)
Need help I am going in this Friday.
X wifes attorney is filing a contempt
even though I am in dor and they (dor)are
following the court order.
Mark
--
Barbara C. Johnson, Advocate
of Court Reform and Attorney at
Law 6 Appletree Lane Andover,
MA 01810-4102
978-474-0833
email: barbaracjohnson@worldnet.att.net
False Allegations:
http://www.falseallegations.com
Participating Attorney:
http://www.lawguru.com/cgi/bbs2/user/browse.shtml
Campaign 2002: http://www.barbforgovernor.com
-----
The judicial system is very
broken. It must be fixed.
There are four people who can
do the job:
Everybody, Somebody, Anybody,
and Nobody.
Everybody thinks Somebody will
surely do it.
It is a job Anybody can do.
But Nobody is doing it.
At least I'm trying. What are
you doing?
"Women are not men's life
partners, but rivals favored by law."
Paul Craig Roberts, in "The
Wars We Can't Afford to Lose,"
citing Professor Richard T.
Hise, The War Against Men
|
