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AGLO 1971 No. 125 -
Attorney General Slade Gorton

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                                                                November 8, 1971
Honorable Arthur E. Eggers
Prosecuting Attorney
Walla Walla County
407 Drumheller Building
Walla Walla, Washington 99362
                                                                                          Cite as:  AGLO 1971 No. 125 (not official)
Dear Sir:
            This is written in response to your recent letter requesting our opinion as to whether in an unlawful detainer action under chapter 59.12 RCW, the payment of a jury fee is required by RCW 4.44.100 if a jury trial is demanded by either party.
            In our opinion, this question is answerable in the affirmative.
            RCW 4.44.100 reads as follows:
            "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.  Unless such statement is filed and a jury fee paid as provided by law, the parties shall be deemed to have waived trial by jury, and consented to a trial by the court: Provided, That, in the superior courts of counties of the first class such parties shall serve and file such statement, in manner herein provided, at any time not later than two days before the time the case is called to be set for trial."
            In addition, see CR 38, Civil Rules for Superior Court, a Xerox copy of which is enclosed.  You will note that this rule supersedes RCW 4.44.100 in some respects, but  [[Orig. Op. Page 2]] not as to the requirement regarding payment of a jury fee where a jury is demanded.
            RCW 59.12.130 relating to the trial of issues of fact raised by the pleadings in an unlawful detainer action under chapter 59.12 RCW, provides as follows:
            "Whenever an issue of fact is presented by the pleadings it must be tried by a jury, unless such a jury be waived as in other cases.  The jury shall be formed in the same manner as other trial juries in the court in which the action is pending; and in all cases actions under this chapter shall take precedence of all other civil actions."
            You have suggested, as we understand it, that RCW 4.44.100, supra, may be inapplicable to a jury trial held under this section
            ". . . since under RCW 59.12.130 a jury trial is required unless waived, whereas RCW 4.44.100 provides for waiver of jury trial unless a jury is demanded and fee paid."
            However, we are not inclined to regard this technical distinction between these two statutes to be material to a resolution of your question.  RCW 59.12.130 provides for a jury trial ". . . unless . . . waived as in other cases."  The means by which a jury trial is waived in other cases is by a failure to demand a jury.  Accord, State ex rel. Clark v. Neterer, 33 Wash. 535, 74 Pac. 668 (1903).  Therefore, it appears to us that in substance if not in form, there is no difference between RCW 59.12.130 and RCW 4.44.100 (and CR 38) in regard to the procedures to be followed in obtaining or waiving a jury trial.
            Moreover, it is to be noted that RCW 59.12.180, a part of the same act as RCW 59.12.130, supra, expressly provides that:
            "Except as otherwise provided in this chapter, the provisions of the laws of this state with reference to practice in civil actions are applicable to, and constitute the rules of practice in the proceedings mentioned in this chapter; and the provisions of such laws relative to new trials and appeals, except so far as they are inconsistent with the provisions of this chapter, shall be held  [[Orig. Op. Page 3]] to apply to the proceedings mentioned in this chapter."
            We find nothing in chapter 59.12 RCW which is inconsistent with the requirement of RCW 4.44.100, supra, that a jury fee be paid before the issues raised in an unlawful detainer action may be set for trial by jury.
            It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
Philip H. Austin
Deputy Attorney General