dissenting.
Article I, Section 13, of the North Dakota Constitution provides in part that “The right of trial by jury shall be secured to all, and remain inviolate.” Procedural rules which implement this constitutional right to trial by jury are obviously necessary. But rigid and slavish adherence to those rules turns the constitutional right into a matter of judicial grace which appears to be contrary to the spirit and intent of our Constitution. On appeal our review should not simply be to seek reasons to justify the denial of trial by jury; rather, if there is any question as to whether or not there has been a proper and timely demand for a jury the presumption should favor the trial by jury.
In this instance the counterclaim, at least for damages, raises what I believe to be a new issue for which the demand for a jury trial was timely made pursuant to Rule 38, N.D.R.Civ.P. The majority opinion, at footnote 1, relying upon Walton v. Eaton Corp., 563 F.2d 66 (3d Cir.1977), dismisses that argument with the conclusion' that
“Even if the damages allegedly sustained by the defendants in their counterclaim were a ‘new issue,’ the most the defendants would have been entitled to was a jury trial on the issue of damages”; and “Because the trial court found against the defendants on liability,. the question of a jury trial on damages is moot.” Walton so concludes, with two of the Circuit Judges concurring in the result and a vigorous dissent by Judge Gibbons. Walton, supra, at 75.
More significantly, Rule 39(b), N.D.R. Civ.P., provides:
“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 a jury of any or all issues.” [Emphasis supplied.]
A leading commentary discussing this rule, derived from the Federal Rules, states:
“Those courts that have taken a highly restrictive view of the circumstances in which the discretion given by Rule 39(b) will be exercised in favor of allowing a jury trial have reasoned that the power to order trial by jury given them by that rule was not intended to serve as a device to circumvent or bypass the positive action that must be taken under Rule 38 to obtain jury trial. These decisions seem to place the emphasis in the wrong place. Technical insistence upon imposing a penalty for default by denying a jury trial is not in the spirit of the rules. The rules do not limit the court’s discretion in ordering a jury in cases in which there would have been a right to jury trial. The court ought to approach each application under Rule 39(b) with an open mind and an eye to the factual situation in that particular case, rather than with a fixed policy against granting the application or even a preconceived notion that applications of this kind are usually to be denied.” 9 Wright & Miller, Federal *408Practice & Procedure, § 2334 at 115-116 (1971).
Compare Cox v. C.H. Masland & Sons, Inc., 607 F.2d 138 (5th Cir.1980) [although a judge is not required to allow untimely request for jury trial, court should grant jury trial in absence of strong and compelling reasons to the contrary].
An issue of fraud is one of fact which entitles the party to a trial by jury. E.g., Benefiet v. Hoiby, 370 N.W.2d 513 (N.D.1985). Although I agree the fraud alleged in the answer was essentially the same as that alleged in the counterclaim, once the counterclaim alleging damage for fraud had been allowed and a demand for a jury trial made, a proper application of Rule 39(b) would dictate that a jury trial should have been granted as to all issues.1 There appears to me to be little purpose to permitting the initial trial only as to damages but denying it as to the issue of fraud, particularly if the issue of damages may be intertwined with that of liability. Cf. Irgens v. Mobil Oil Corporation, 442 N.W.2d 223 (N.D.1989); Bergquist-Walker Real Est. v. Wm. Clairmont, 333 N.W.2d 414 (N.D.1983) [where elements of contract closely connected with issue of damages, order for new trial should encompass all issues raised by the pleadings].
The budget of the judicial branch of our government, like those of the other branches, is limited and the costs of trial by jury are substantial. However, a parsimonious refusal to allow a jury trial can only foster the already too common belief that an elitist judiciary believes that only judges are really competent to determine these issues.
I would reverse the judgment and remand for a jury trial on the issues raised in the counterclaim.
. There is no indication that the purpose of the counterclaim for damages and the demand for a jury trial was to circumvent Rule 38(b), N.D.R. Civ.P.