NOTES TO RULE 39
Notes of Advisory Committee on Rules.
The provisions for express waiver of jury trial found in USC, Title 28, former § 773 (Trial of issues of fact; by court) are incorporated in this rule. See Rule 38, however, which extends the provisions for waiver of jury. USC, Title 28, former § 772 (Trial of issues of fact; in equity in patent causes) is unaffected by this rule. When certain of the issues are to be tried by jury and others by the court, the court may determine the sequence in which such issues shall be tried. See Liberty Oil Co. v Condon Nat. Bank, 260 US 235, 43 S Ct 118, 67 L Ed 232 (1922).
A discretionary power in the courts to send issues of fact to the jury is common in state procedure. Compare Calif Code Civ Proc (Deering, 1937) § 592; 1 Colo Stat Ann (1935) Code Civ Proc, ch 12, § 191; Conn Gen Stat (1930) § 5625; 2 Minn Stat (Mason, 1927) § 9288; 4 Mont Rev Codes Ann (1935) § 9327; NYCPA (1937) § 430; 2 Ohio Gen Code Ann (Page, 1926) § 11380; 1 Okla Stat Ann (Harlow, 1931) § 351; Utah Rev Stat Ann (1933) § 104-23-5; 2 Wash Rev Stat Ann (Remington, 1932) § 315; Wis Stat (1935) § 270.07. See Equity Rule 23 (Matters Ordinarily Determinable at Law When Arising in Suit in Equity to be Disposed of Therein) and USC, Title 28, former § 772 (Trial of issues of fact; in equity in patent causes); Collecton Merc. Mfg. Co. v Savannah River Lumber Co. 280 Fed 358 (CCA4th, 1922); Fed. Res. Bk. of San Francisco v Idaho Grimm Alfalfa Seed Growers' Ass'n, 8 F2d 922 (CCA9th, 1925), cert den 270 US 646, 46 S Ct 347, 70 L Ed 778 (1926); Watt v Starke, 101 US 247, 25 L Ed 826 (1879).