(dissenting).
When our rules of civil procedure were adopted, members of the permanent rules committee made it clear they intended to provide in Rule 5(b) that service could be made upon a party by delivering a copy of the instrument served to such party, by mailing it to him, or by leaving it with the clerk of the court.
Although the rule provided that the clerk should promptly mail or deliver to the party entitled thereto copies deposited with him, no responsibility was placed upon the party making service to see that the clerk’s duty was performed.
It seems to me the committee’s intent in this regard was made clear in its explanatory note following Rule 5. This note is referred to in the majority opinion. The note states 5(b) is the Federal Rule modified by permitting service upon the clerk *1009in all cases, directing the clerk to mail copies deposited with him.
By permitting service “upon” the clerk, the rule has the effect of making the clerk agent for the party being served rather than agent for the party making service.
The question is not so much whether plaintiff properly demanded a trial by jury as it is whether plaintiff waived a jury trial. Rule 38(a) provides issues of fact arising in actions for the recovery of money only shall be tried by a jury “unless a jury trial [shall] be waived.”
When plaintiff served her demand for jury trial by serving it “upon” the clerk as permitted by rule, and when she deposited the required jury fee, it hardly makes sense to say she had waived the fundamental right of jury trial.
However, even assuming there may be doubt as to whether plaintiff did all due process would require to preserve her right to jury trial and to prevent a waiver of such right, we ought not say there was reversible error in trying the case to a jury. As set out in the majority opinion, Rule 39(b), W.R.C.P., provides notwithstanding the failure of a party to demand a jury, “the court in its discretion upon motion may order a trial by a jury of any or all issues.”
Here, a motion or request was made by plaintiff for the court to allow a jury trial under the discretion allowed in Rule 39(b). Appellant argues the court did not purport to act on this request, but that instead it found the demand properly made. As I see it, it matters not what the court’s reason was. The important thing is that the necessary motion was made, and the court ordered a trial by jury.
The trial court obviously thought plaintiff had sufficiently complied with the express provisions of the rules and that plaintiff should not therefore be held to have waived a jury trial. That was reason enough for the court’s decision to submit the case to a jury. And it would be unimportant what language the judge used in explaining the reason for his decision.
Even if a majority of our court may view the rules in a different light than did the trial court, we still should not question the trial court’s action in allowing a trial by jury. Under Rule 39(b), it had the right to do so.
Appellant and the majority in our court take the position plaintiff’s motion for the allowance of a trial by jury under Rule 39(b) was not acted upon. Therefore, when the case is remanded for further proceedings consistent with the views expressed in the majority opinion, it would seem to me the trial court’s first action would be to act upon plaintiff’s motion for trial by jury pursuant to Rule 39(b).
If the trial court still says trial should be to a jury, it would point up that defendant was not prejudiced in the first place. We have said the purpose of a nunc pro tunc order is to make the record speak the truth. Therefore, suppose the trial court should make it a matter of record that it intended, at the time it first ordered a jury trial, for the trial to be to a jury regardless of whether plaintiff complied strictly with the requirements for demanding a jury. Would that justify a reaffirmance of the original judgment without a new trial? If not, why not ?
I do not agree that prejudicial error was committed in allowing a trial by jury.