Reporter’s Notes to Rule 39:

1. With the exception of minor wording changes in Section (c), Rule 39 is otherwise identical to FRCP 39. The purpose behind this rule is to ensure that when a jury trial has been requested, it will be granted on all issues triable by jury unless the parties thereafter affirmatively waive this right. Under Section (b), the trial court retains discretion to grant a trial by jury even though timely request or demand has not been made.

2. Section (c) authorizes the trial court to submit any issue to an advisory jury where it would otherwise not be triable by jury or, with the consent of all parties, may order that the verdict of such jury shall be binding as if the issues were triable by jury as a matter of right. Superseded Ark. Stat. Ann. § 27-1705 (Repl. 1962) provided that all issues not triable by jury as a matter of right were to be tried by the court, subject to its power to order any issue to be tried by jury, whether at law or in equity. Thus, the trial courts in this State have previously had the inherent right to submit any issue to a jury. This rule would, however, limit the effect of a jury verdict under Section (c) unless all parties consent to a binding effect.

3. Under the circumstances outlined in Section (c), it is possible to have a binding jury verdict in equity proceedings. This is a change in Arkansas law as jury verdicts in chancery court have heretofore been considered as advisory only and not binding upon the court. Sullivan v. Wilson Mercantile Co., 172 Ark. 914, 290 S.W. 938 (1927); City of Magnolia v. Davies, 188 Ark. 19, 64 S.W.2d 85 (1933).