Moser v. Texas Trailer Corp.

PER CURIAM: In our opinion in this case, 623 F.2d 1006, we decided that the defendants had waived the right to a jury trial because they had consented to the filing of an amendment which stated that “this cause of action is within the admiralty jurisdiction of this Honorable Court and pursuant to Section 9(h) of the Federal Rules of Civil Procedure without a jury.” Crescent Petroleum and Texas Trailer now move for a rehearing on the alleged ground that although the signature of Crescent’s counsel appears at the bottom of the amendment in a statement: “The filing of the Plaintiff’s First Amended original Petition is unopposed,” this signature was affixed by Plaintiff’s counsel and that Crescent’s counsel had not, in fact, consented thereto. A copy of this amendment was served on these parties and they then took no exception to the fact that their signature appeared upon the consent. Thereafter, the plaintiff moved to quash the jury demand. Thereupon, Crescent1 filed a document called “Opposition of Defendants ... to *250Plaintiff’s Motion to Quash Jury Demand.” In that document under the heading “Pertinent Facts” Crescent stated: On or about February 24, 1976, the First Amended Original Petition was filed by counsel for Plaintiff Moser. In that pleading, Darthea Moser was added as a party Plaintiff and additional Defendants were named.