Clemenson v. Chandler

By the Court,

Safford, J.

The only question which is urged for our consideration in this case, arises upon the refusal of the district court to submit any of the various issues, of whatever kind or nature, as made up by the pleadings, to the. judgment and decision of a jury, according to the request and demand of the plaintiff in error, who was one of the defendants below.

*560 Such, refusal of the district court is claimed to have "been erroneous, and prejudicial to the rights of the parties defendant, and especially so to the rights of the plaintiff here. We think that this point is well taken; and when considered in the light of the provisions of the code "bearing upon it, is seemingly so clear as to hardly admit of question, or require argument to establish it. Sec. 274 of the code provides as follows: “That issues of law must be tried by the court, unless referred, as provided in § 292. Issues of fact arising in an action for the x’ecovery of moxxey, or of specific, real or personal property, shall be tried by a jury, unless a jury is waived or a reference be ordered, as hereinafter provided.” Secs. 269, 270, 271, and 272, treat of the issues arising in actions upon the pleadings, and, among other things, afford a definition of the two kinds of issues which may thus arise, to wit: issues of law and of fact.

Now, applying the definition here given of an issue of fact to the pleadings in this case, whatever may appear in the nature of an issue of law, there can cei'tainly be no question as to the existence of more than one issue of fact; and such issues of fact ought, as we have seen (§274, Code; 10 O. Si., 437), to have been tried by jury, if the action was for the recovery of money or of specific, real or personal property, and a jury was not waived or a reference ordered.

Whatever else might have been the object of this suit, in this instance its primary object was the recovery of a judgment for money; and secondarily, in case of such recovery, the determination of the prioi-ity of liens upon and the subjection of certain property to sale for the payment of such judgment.

The record shows that no waiver of a jury was made, *561 but, on the contrary, that such jury was demanded, and that no reference was asked for .or ordered. All these several matters, as well as those to which we have before referred, appearing in the record, we think, as before stated, that the district court erred in refusing the demand for a jury trial, and that the judgment in this case should, for that reason, be reversed.

It is accordingly so ordered, and the cause remanded for further proceedings.

Bailey, J., concurring.