(a) By Jury . When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the calendar and the clerk's filebook 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 its own initiative finds that a right of trial by jury of some or all of those issues does not exist.
Rule 39.Trial by jury or by the court
Group VI: Trials · Not amended since adoption on record · Last verified July 13, 2026
In one sentenceRule 39 sets how a case gets tried once jury rights are sorted out — by jury unless the parties stipulate to a bench trial or the court finds no jury right exists, by the court or a master on non-jury issues, and by an advisory or consent jury where no right to a jury exists at all.
Full Text of Rule 39
(b) By the Court . Issues of law and issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court or may be referred to a master as provided in Rule 53; 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 . In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury or the court, with the consent of both parties may order a trial by jury whose verdict has the same effect as if trial had been a matter of right.
Notes
Note: This Rule 39 is substantially the Federal Rule. Paragraph 39(b) preserves the State practice of reference to masters of appropriate non-jury cases. The Rule preserves State practice with no real change. Present Circuit Rule 28, and the substance of Code §§ 15-23-70, 15-27-90, 15-23-60 and 15-33-20 are retained.
Plain-English Summary
Rule 38 decides whether a jury demand exists; Rule 39 decides what happens to the case once that question is answered. Where a jury has been properly demanded, the trial goes forward that way unless the parties stipulate — in writing or on the record in open court — to a bench trial instead, or unless the court determines, on its own or on motion, that no right to a jury exists for some or all of the issues.
Issues of law, and any issues nobody demanded a jury for, are tried by the court, or can be referred to a master under Rule 53. But a missed demand is not always fatal to a jury trial: even where a party could have demanded one and did not, the court retains discretion to order a jury trial of any or all issues on motion.
For cases with no jury right at all, Rule 39(c) offers two options. The court can convene an advisory jury on its own initiative or on motion, whose verdict is purely advisory. Or, with both parties' consent, the court can order an actual jury trial whose verdict carries the same binding effect as if the parties had a right to a jury in the first place.
Frequently Asked Questions
Can a judge order a jury trial even if no one made a timely demand?
Yes. Rule 39(b) gives the court discretion to order a jury trial of any or all issues on motion, even where a party's demand right was waived.
What is an advisory jury?
In a case with no right to a jury trial, the court can convene a jury under Rule 39(c) whose verdict advises the court but does not bind it.
Can parties agree to skip a jury even after demanding one?
Yes. Rule 39(a) allows the parties to stipulate, in writing or on the record in open court, to trial by the court instead.
What does it mean for an issue to be referred to a master?
Rule 39(b) allows non-jury issues to be sent to a master under Rule 53 rather than tried directly by the judge.
Source & verification. Rule text, official Notes, and amendment
history are reproduced verbatim from the South Carolina Rules of Civil Procedure,
adopted by the Supreme Court of South Carolina. Last verified July 13, 2026. ·
Official source
Also known as: advisory jury South Carolinatrial by court SCRCPwaiver of jury by stipulationreference to master trial