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Bob Ferguson

AGO 1956 No. 219 -
Attorney General Don Eastvold


The county is liable for the payment of a jury deposit in a civil action when the county demands a jury trial.

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                                                                   March 7, 1956 

Honorable John Hancock
Prosecuting Attorney of Okanogan County
Hancock Building
Okanogan, Washington                                                                                                              Cite as:  AGO 55-57 No. 219

 Dear Sir:

             Your letter of February 25, 1956, requested our opinion on the following question:

             "Is the County liable for payment of a jury fee, when the County has requested a jury trial in a civil case?"

             We answer in the affirmative.


             There being neither a statute specifically answering the question nor any case law directly in point, it becomes necessary to read the statutes pertaining to county corporate powers, jury fees and costs, together with the cases dealing with the deposit of a jury fee in general.

             RCW 36.01.010 provides in part:

             "The several counties in this state shall have capacity as bodies corporate to sue and be sued in the manner prescribed by law; * * *"  (Emphasis supplied.)

              [[Orig. Op. Page 2]]

            RCW 4.44.100 provides:

             "Either party shall have the right in an action at law, upon an issue of fact, to demand a trial by jury.

             "In all civil actions triable by a jury in the superior court any party to the action may, at or prior to the time the case is called to be set for trial, serve upon the opposite party or his attorney, and file with the clerk of the court a statement of himself, or attorney, that he elects to have such case tried by jury.  At the time of filing the statement the party shall also deposit with the clerk of the court twelve dollars, which deposit, in the event that the case is settled out of court prior to the time that it is called for trial, shall be returned to the depositor by the clerk.  Unless such statement is filed and the deposit made, the parties shall be deemed to have waived trial by jury, and consented to a trial by the court.

             "* * *"  (Emphasis supplied.)

             RCW 4.84.170 sets forth the liability of the county for costs:

             "In all actions prosecuted * * * in the name and for the use of any county, the * * * county shall be liable for costs to the same extent as private parties."  (Emphasis supplied.)

             RCW 4.44.110 provides in part:

            "The amount deposited by the party demanding a trial by juryshall be a part of the taxable costs in such action.  * * *" (Emphasis supplied.)

              [[Orig. Op. Page 3]]

            That the legislature may require the prepayment or deposit in court of jury fees is the conclusion of the great weight of authority.  31 Am.Jur. § 33, page 581.  Where the record fails to disclose that the requisite jury fee has been paid, our supreme court has held repeatedly that the party litigant so failing to meet the statutory requirement waives his demand for a jury trial in civil cases.  Tobacco v. Rubatino (1950, 35 Wn. (2d) 398; Bargreen v. Little, 27 Wn. (2d) 128; Thomas v. Moceri, Inc. (1932), 169 Wash. 219; State ex rel. Clark v. Neterer (1903), 33 Wash. 535.

             Reviewing the foregoing statutes and case law, we conclude that a county is in the same category as any other party litigant.  It must comply with the statutory requirement for prepayment of a jury fee deposit; failure so to do will constitute waiver of jury as it would in the case of a private party.

             We hope that this opinion will prove to be of assistance to you.

 Very truly yours,
Attorney General 

Assistant Attorney General