(a) By jury. When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of this state.
Rule 39.Trial by jury or by the court.
Last verified July 6, 2026
In one sentenceRule 39 sorts out, once a case has both jury-triable and non-jury issues mixed together, which issues go to the jury, which go to the judge, and when the court may use an advisory jury or let the parties agree to one.
Full Text of Rule 39
(b) By the court. Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by jury of any or all issues.
(c) Advisory jury and trial by consent. The court upon motion or of its own initiative may try with an advisory jury any issue not triable of right by a jury or for which a jury trial has been waived, or, in any case with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.
(dc) District court rule. Rule 39 does not apply in the district courts.
Amendment History
This rule has not been amended since its adoption.
Committee Comments
Committee Comments on 1973 Adoption
Rule 39 implements the union of law and equity by providing that issues as to which there is a right to jury trial and a jury has been properly demanded shall be tried to the jury, while other issues are tried to the court. The purpose of the rule is to remove the former expensive and time-losing requirement of two separate suits to give a litigant his legal as well as his equitable relief. Bruckman v. Hollzer, 152 F.2d 730 (9th Cir.1946). As to the procedure under the rule, see Wright & Miller, Federal Practice and Procedure, Civil, § 2331 et seq. (1971). See also Rule 2 and comments thereto. Note that the Rule 39(b) power for court ordered trial by jury can only occur upon motion of a party.
Rule 39(c) permits the court to impanel an advisory jury where it desires such assistance. The verdict of the advisory jury is merely for the purpose of “enlightening the conscience of the Chancellor.” The trial judge continues to have the responsibility for decision, and must prepare his own findings of fact and conclusions of law, pursuant to Rule 52(a). Such an advisory jury is already a part of Alabama practice. Hill v. Lindsey, 223 Ala. 550, 137 So. 395 (1931); Lucas v. Scott, 247 Ala. 183, 24 So.2d 540 (1945). The language of Rule 39(c) differs from that of the corresponding federal rule in order to provide specific authorization for impaneling of an advisory jury where the parties have waived jury trial, as well as in cases where they had no right to jury trial. Federal cases have been divided as to whether an advisory jury can be used in such circumstances. Compare Lumbermen’s Mutual Casualty Co. v. Timms & Howard, Inc., 108 F.2d 497 (2d Cir.1939), and Brock v. Farmer, 291 S.W.2d 531, 534 (Ky.1956), with Hargrove v. American Central Ins. Co., 125 F.2d 225 (10th Cir.1942) and Cudmore v. Smith, 260 F.Supp. 760 (D.Conn.1966).
The final half of Rule 39(c) allows the court to submit the case to a jury as if jury trial were of right. In the rare case where this procedure is utilized, the jury must be chosen, instructed, and its verdict received exactly as if jury trial had been a matter of right. This procedure may be used only with the consent of the court and of all the parties.
Plain-English Summary
Because Alabama merged legal and equitable claims into a single kind of lawsuit, a single case can now contain some issues that carry a right to a jury and others that do not. Rule 39 is the traffic director for that mix. If a party properly demanded a jury under Rule 38, the case (or the relevant issues in it) gets marked as a jury matter and tried that way, unless everyone agrees in writing or on the record to let the judge decide instead, or unless the court determines that no real right to a jury exists for those issues under the law.
Issues nobody demanded a jury for go to the judge. But the rule gives the court some flexibility even after a party misses the Rule 38 deadline: on its own initiative or on motion, the court can still order a jury trial for issues that could have been tried to a jury as of right, even though the formal demand never came in on time. That discretion is not unlimited, but it gives a court room to avoid a harsh result when a demand is late or technically defective.
Rule 39 also lets a judge call in an advisory jury for issues that were never entitled to a jury trial in the first place, or where the right was waived. An advisory jury’s verdict does not bind the judge; it only informs the judge’s own findings, which the judge must still prepare independently. And if both sides agree, the court can send even an ordinary bench-trial issue to a jury whose verdict then counts exactly as if a jury trial had been demanded as of right. Like Rule 38, this rule does not apply in district court.
Frequently Asked Questions
If I properly demand a jury under Rule 38, does the case automatically go to a jury?
Generally yes, as to the issues demanded, unless all parties agree to let the judge decide instead or the court finds that no legal right to a jury exists for those particular issues.
What happens to issues nobody demanded a jury for?
They are tried by the judge. The court still has discretion, though, to order a jury trial on those issues even without a timely demand.
What is an advisory jury and how is it different from a regular jury?
An advisory jury hears an issue that was never entitled to a jury trial, or where the right was waived, but its verdict only guides the judge. The judge remains the decision-maker and must still make independent findings.
Can the parties agree to have a jury decide an issue that would otherwise go to the judge?
Yes. With the consent of all parties, the court can order a jury trial on an issue that would normally be decided by the judge, and the jury’s verdict then has the same effect as if the jury trial had been a matter of right.
Does Rule 39 apply in Alabama district court?
No. District courts do not hold jury trials, so Rule 39 does not apply there.
Source & verification. The rule text, amendment history, and Committee Comments are reproduced verbatim from the
official Alabama Rules of Civil Procedure (Ala. R. Civ. P. 39). Prescribed by the Supreme Court of Alabama (Ala. Const. amend. 328, § 6.11). The plain-English summary is original and written by us. Last verified July 6, 2026. ·
Official source
Also known as: trial by jury or by the courtadvisory jury Alabamabench trial vs jury trialmixed jury and nonjury issuesAla. R. Civ. P. 39