What, Me Jury?
June 12, 2017 § 1 Comment
We all know that the chancellor is required to impanel a jury when requested to do so in a will contest, and that the jury’s verdict in such a case is binding unless the court directs a verdict otherwise or grants a new trial. At one time the same was true in paternity suits, but that was changed.
Not long ago a lawyer jokingly told me that he was going to request a jury trial in a divorce case. That got us wondering whether the old “advisory jury” that predated the MRCP was still available in cases other than will contests.
Well, actually, it is. MCA § 11-5-3 says that “The chancery court, in a controversy pending before it, and necessary and proper to be tried by a jury, shall cause the issue to be thus tried and made up in writing.” In modern parlance, that translates into “the chancery court may impanel a jury in a case pending before it.” The cases have broadly interpreted that “necessary and proper to be tried to a jury” language to extend to a wrongful death action in chancery via pendant jurisdiction, an action for accounting by a bankruptcy trustee, partition, and “conflicting claims to realty.”
The catch is that the chancellor is not bound by the jury’s verdict, and the verdict is purely advisory. As Griffith explained, “Because … (1) of the delay, (2) of the additional public expense, and (3) because the verdict of a jury in chancery is purely advisory and the chancellor may disregard it, such a submission in an equity case is seldom allowed or desired.” Griffith, Mississippi Chancery Practice, 2d Ed., 1950, § 597. Griffith goes on to point out that, if the chancellor accepts the verdict and incorporates it into a decree, on review the decree is regarded by the appellate court as if it were the findings of the chancellor, just as if there had been no jury.
An interesting wrinkle is MCA § 11-5-5, which states that, if the request for a jury trial is granted and afterward there is a change of venue, then the receiving court is required to impanel a jury to try the case.
Now, I am not advocating for or encouraging anyone to make routine demands for jury trials in chancery, particularly since they are advisory only. I just thought that all the law nerds out there would enjoy this tidbit of really trivial trivia.
The Better Chancery Practice Blog 
If I remember correctly, Georgia allows a jury in a divorce to determine most everything except child custody.