(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.

(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.

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.