Defendant, appellant here, moved to open a default which resulted from his failure to timely answer a suit brought against him in the Civil Court of Fulton County. After a hearing the trial judge granted the motion and allowed the defendant to file an answer on January 30, 1975. On June 13, 1975, the defendant made a written demand for a jury trial and sought to amend his answer by including such demand. However, the case was assigned to a judge, sitting without a jury, who tried the case and found for the plaintiff. The defendant appeals and contends that the trial judge erred in denying the demand for a jury trial. Held:

Section 39 of the Act creating the City of Atlanta Municipal Court (now the Civil Court of Fulton County) as amended, provides: "The defendant in such action may file a written demand for a trial by jury on or before the day upon which he is required to appear in court in response to said proceeding and upon such defendant's failure thereupon to demand a trial by jury, he will be held to have waived the same . . ." Ga. L. 1913, pp. 145, 165; Ga. L. 1935, pp. 500,503. In Cherry v. McCutchen, 68 Ga. App. 682, 690 (3) (23 SE2d 587), it is held: ". . . if the defendant, where a plaintiff does not make a demand, desires a jury trial he must make such demand in writing at the time he appears and pleads, and that if no such demand for a jury trial is made the parties will be deemed to have waived such trial." Accord: Bowen v. McClelland, 115 Ga. App. 617 (1) (155 SE2d 660). Waiver may be made of the right of trial by jury, and where a party has the right to demand a jury trial and neglects to do so he will be held to have waived the right. Flint River Steamboat Co. v. Foster, 5 Ga. 194 (8); Sutton v. Gunn, 86 Ga. 652 (12 SE 979); Mills & Williams v. Ivey, 3 Ga. App. 557 (4) (60 SE 299); One Hour Valet v. Kamor, 103 Ga. App. 618, 620 (120 SE2d 130); Stamps Tire Co. v. Hartford, 115 Ga. App. 326 (2) (154 SE2d 656); Southern R. Co. v. Beach, 117 Ga. 31 (2) (43 SE 413); Heard & Sutton v. Kennedy, 116 Ga. 36 (1) (42 SE 509).

This is not one of those matters within the purview of CPA 15 (c) (Code Ann. 81A-115; Ga. L. 1966, pp. 609, 627; 1968, pp. 1104, 1106; 1972, pp. 689, 694). It is evident that the demand for a jury trial must have been made at the time of the original answer and the defendant could not at a later time make such request.

Under the same statute, Ga. L. 1913, p. 145, as amended, Ga. L. 1935, pp. 500, 503, supra: ". . . any judge of said court shall have the right on his own motion and in his discretion, to refer any cause involving an issue of fact to a jury for trial for a general verdict in said case, or may refer any issue of fact to a jury for the rendering of a special verdict on such issue . . ." Nevertheless, the failure to refer the cause for jury trial will not be controlled absent abuse of the judge's discretion which was not here shown.

Dillard, Dillard & Shearer, G. Douglas Dillard, for appellee.