specially concurring.
Not fully persuaded that the trial court committed any error, I attempt a brief explanation of my own views, differing somewhat from those of the other members of the Court.
Had the defendants allowed the matter to go entirely by default it would not have been necessary to empanel a jury. The defendants did, however, let the case go by default, but only after filing their own pro se pleadings in the case, wherein they did demand a jury. From that time on, as pro se practitioners, their mishandling of their own case was such that had a professional attorney so conducted their affairs — tantamount to an abandonment of their defense contentions — he would have laid himself open to a damage claim for negligence.
*787On the state of the record before the trial court, it is difficult, on a logical approach, to find fault in the trial court’s determination to hear the case without putting the county to the expense of bringing in a jury. Being the avid and staunch supporter of the jury system which I admit to be, I am nonetheless constrained to the view that jury trials should be safeguarded as a constitutional right — for those who will attend the jury trial they have demanded.
Having never been enthralled with Idaho’s wholesale adoption of the “federal rules” which are now being assailed even in the federal system, in particular and along with other practitioners I share with the bar a deep concern for the extreme proliferation of those rules — and amendments and alterations thereof which constantly stem from this Court. When the Court set itself to the task of rewriting the entire substantive law of the Youth Rehabilitation Act and the Child Protection Act into Juvenile Rules, which predated my arrival on the Court, and then adopted what it had created without proper heed and circumspection for that which is substantive and that which is truly procedural, I registered a blanket vote against the whole concept. Similarly, I have written from time to time that the Court has improperly entered into substantive areas in amending statutory law relative to awarding attorney fees, and in declaring the substantive law as to the manner in which a witness’s credibility may be destroyed by its felony impeachment rule. It is only natural, therefore, that I should experience some reservation toward a court rule which modifies the Constitution by purporting to control the manner in which the right to a jury trial may be lost.
Prior to Idaho’s federal rules adoption in 1959, and since before statehood, the legislature provided that the right to a jury trial had to be affirmatively waived by consent, or by failure to appear at the trial. I.C. § 10-301. The rule, on the other hand, would deprive a litigant of his right to a jury if his attorney neglected to demand one in writing. Thus the right of the litigant was subverted to the lawyer’s decision or inattention — not a wholly desirable result from a litigant’s point of view.
The legislature’s substantive code provision and the Court’s procedural rule stood together until 1975, in which year a supplicating legislature obliged the Court by complacently repealing the statute. The legislature is not subject to excessive criticism, however, because in 1965 the Court had handed down an opinion in which it declared its authority to be paramount to the legislature’s, the essence of which opinion held the matter of a jury waiver to be inherently procedural, and thus within the control of the Court instead of the legislature — which had at that time superintended the proposition for almost one hundred years. R.E.W. Construction Co. v. District Court, 88 Idaho 426, 400 P.2d 390 (1965). The damage done by that opinion may well be irreparable, but so long as it stands, the Court will make such rules as it fancies, and will in turn interpret the rules it has made — as has been done.
With those thoughts in mind, I point to that provision of I.R.C.P. 39(a) which provides that “[t]he trial of all issues so demanded shall be by jury, unless ... (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 that provision I firmly believe, as apparently did the trial court, that this Court would properly conclude that parties demanding a jury trial, are deemed to have abandoned their demand when they do not appear for trial. The result of such failure to appear is the loss of the claimed right; hence, it no longer exists, and the Rule applies.
Accordingly, in my view the judgment of the district court can be and should be affirmed. It is wholly within the power of the Court to so interpret its Rule, and that other activist courts have not done so carries little weight as against what was the undoubted statutory rule in this state since at least 1887, during which time its validity and propriety was never questioned.
Finding no support from other members of a Court which sees little distinction between substantive law and rules of procedure, I join the opinion of Shepard, J.