I dissent. I think this is a case of legal, and not of equitable, cognizance. It was tried twice; the first time before Judge Ritchie and a jury. It was tried and submitted by all the parties concerned as a law case. A verdict was rendered by the jury, determining the issues in favor of the plaintiffs and against the defendants, and a judgment entered thereon. On motion by the defendants, on grounds of insufficiency of the evidence to support the verdict and errors of law occurring at the trial, a new trial was granted. The case came on for retrial before Judge McCrea and a jury. The trial was entered upon and the case again regarded by all the parties as a law case. A jury was impaneled to try and determine the issues. Evidence was adduced by the plaintiffs in support of the allegations of their complaint and they rested. The defendants interposed a motion for nonsuit on grounds of insufficiency of the evidence to support the allegations of the complaint. In the course of arguments on the motion the court, on its own motion and not at the request of any of the defendants, ruled that the case was one in equity, and over the objections of plaintiffs dismissed the jury from further consideration of the case. The court thereupon overruled the motion for nonsuit and proceeded to further hear the case without a jury and as an equity case.
This ruling is one of the principal errors assigned by the plaintiffs. They contend that all of the issues were of legal cognizance and triable by a jury, and, if not all, at least some, of the necessary and material issues were so triable. To determine whether the case was law or equity requires an examination of the pleadings and the issues thereby *Page 19 presented. Stripped of verbiage, the complaint is one wherein the plaintiffs allege ownership and right of possession of 494 bonds of the Green River irrigation district, and seek a recovery of them. It is alleged that in October, 1920, the defendants Myrup and W.D. Thompson purchased and became possessed of 987 of such bonds, and that each owned a one-half thereof, and that the bonds so purchased were deposited with the defendant Walker Bros., Bankers, for safe-keeping and subject to the joint written order of Myrup and Thompson; that later Myrup sold and delivered his one-half interest in such bonds, which was 494 bonds, to the defendant Bown Live Stock Company, which in turn, in 1921, sold and delivered such 494 bonds to plaintiff Cole and to E.W. Hulse, since deceased, whose estate was represented by Cecil Thompson and Stevenson as administrators of his estate; that the bank claimed no interest in such bonds, other than escrow charges; that the defendants Cullen and Cullen, agent, claimed "some right, title, or interest in and to a part of said bonds," but that they had no right, title, or interest in and to the 494 bonds purchased by the plaintiffs and alleged to be their property. It is not alleged that the other defendants claimed or asserted any right, title, or interest in or to the bonds, but that W.D. Thompson refused to join with the defendant Myrup and the plaintiffs in paying "storage charges" due the bank.
The prayer of the complaint was that Cullen and Cullen as agent be required to set forth what, if any, claim they had to such bonds, and that their claims be adjudged subject to the right and claim of the plaintiffs; that the bank be required to set forth whatever storage charges, if any, it had and that on the payment thereof it be required to deliver the bonds to the clerk of the court; that it be adjudged that the plaintiffs are the owners and entitled to the possession of 494 of such bonds, and if for any reason they cannot be delivered to them, that they have judgment against the Bown Live Stock Company for their value. The complaint thus in substance is nothing more than seeking *Page 20 to recover possession of bonds alleged to be owned by the plaintiffs and entitled to the possession of them. In such respect, all that needed to have been alleged was that the plaintiffs were the owners of and entitled to the possession of the bonds, and that they were wrongfully withheld from them by the defendants. The verbiage in the complaint added nothing to the cause of action, nor changed the tenor of it.
The bank, in whose custody the bonds were, by its answer made no claim to them. It alleged that they were deposited with it in escrow under an agreement by the terms of which W.D. Thompson and A.M. Myrup purchased 987 bonds of the Green River irrigation district from one Sullivan and one Ellsworth, to be delivered to them upon the payment of $11,805, which sum had been paid, and all the terms and conditions of the escrow and agreement had been complied with; that thereafter the bonds continued to remain in the bank's custody; that thereafter several parties to the cause advised the bank of divers and conflicting claims to the possession of the bonds; that it itself had no claim on them, except for escrow charges, and offered to deliver them to the clerk of the court upon the payment of the charges.
The defendants Cullen and Cullen as agent, the principal defendants, denied all the material allegations of the complaint, except that they claimed an interest in the bonds. The denial was sought to be corroborated by verbiage of evidentiary character which it is claimed showed that the plaintiffs were not, but that such defendants were, the legal owners and entitled to the possession of the bonds. In such respect it in substance was alleged by such defendants that an agreement had been entered into by and between Cullen and W.D. Thompson, by the terms of which Cullen, upon the payment to him of $50,000, was to convey to Thompson about 1,000 acres of land and 538 bonds of the irrigation district held by Cullen, but no part of such bonds was held by the bank or was sought to be recovered by the plaintiffs; *Page 21 that among other things Thompson was to secure the 987 bonds held by Sullivan and Ellsworth, of which consideration Cullen agreed to contribute and had contributed $3,500, and that Thompson was to pay the remainder of such consideration; that if Thompson did not carry out the agreement with Cullen, as by its terms provided, the bonds purchased from Sullivan and Ellsworth were to inure to the benefit of Cullen and to become his property; that Myrup became interested with W.D. Thompson in the enterprise, and that the bonds purchased and acquired by them from Sullivan and Ellsworth were purchased and acquired in pursuance of the contract between Cullen and Thompson; that Myrup sold his interest to the Bown Live Stock Company, which in turn sold its interest to Cole and Hulse, who "became interested and associated with Thompson in such deal"; and that the contract between Cullen and Thompson had not been carried out. It was upon such theory that Cullen claimed to own and was entitled to the possession of all of the bonds purchased by Thompson and Myrup from Sullivan and Ellsworth.
The answers of the other defendants, except Myrup and the bank, were in substance the same. The verbiage in the answers added nothing to the general denials. All in such respect alleged was mere matter of evidence, which could have been shown under the general denials. Whether the plaintiffs or Cullen were the owners and entitled to the possession of the bonds was dependent upon the legal rights of the parties, and not upon any equitable principles or doctrines. Nor were any such principles or doctrines invoked by any of the pleadings. That the plaintiffs, for a valuable consideration, about the sum of $6,500, had purchased 494 of such bonds from the live stock company is admitted. Cullen's right and title was dependent upon his contract with W.D. Thompson and an interpretation thereof, and as to whether the plaintiffs or their predecessors were parties or so related thereto as to be bound thereby. All that in no particular was dependent upon any equitable principles or *Page 22 doctrines, but wholly upon legal rights, duties, and obligations, which largely involved the interpretation or construction of the contract between Cullen and Thompson, and as to whether the plaintiffs were parties thereto or otherwise bound thereby.
I thus am of the opinion that the action was one at law and triable by jury. Comp. Laws Utah 1917, § 6781; Hughes v.Dunlap, 91 Cal. 385, 27 P. 642; Newman v. Duane, 89 Cal. 597,27 P. 66; State ex rel. Hansen v. Hart, 26 Utah 229,72 P. 938; Atkinson v. J.R. Crowe, etc., Co., 80 Kan. 161,102 P. 50, 106 P. 1052, 39 L.R.A. (N.S.) 31, 18 Ann. Cas. 242.
The right of a trial by jury is not only a statutory but a constitutional right. 16 R.C.L. 13; Eyak River Packing Co. v.Hughlen, 143 Wn. 229, 255 P. 123, 257 P. 638. A denial of such right is per se prejudicial, because it is a denial of a trial of a cause and of issues as by the statute and the Constitution provided. Even the Legislature has no power to deprive any one of such right. Any statute which attempted such effect would be void, and a trial had thereunder would be of no binding effect. Courts may not, any more than the Legislature, disregard such constitutional provisions. Nor is a deprivation of such a fundamental right curable or cured by evidence. In such case the trial is a mistrial; it is no trial. The judgment herein is no better than had the court denied plaintiffs the right of any trial. Until a case is tried as by fundamental as well as statutory law provided, the issues of the case have not been determined by coram judice proceedings.
Further, it is a familiar rule that objections that a case is not of legal, but of equitable, cognizance must be timely interposed and at the threshold of the case. 3 C.J. 756. The decisions of this jurisdiction are in harmony with that. Park v. Wilkinson, 21 Utah 279, 60 P. 945; Houston Real Estate Inv.Co. v. Hechler, 47 Utah 215, 152 P. 726; Naylor v. Jensen,38 Utah 310, 113 P. 73. *Page 23
While the court did not, at the request or on motion of any of the defendants, rule the case as one of equitable and not of legal cognizance, and dismiss the jury, still, if the defendants waived the right to claim that the case was of equitable and not of legal cognizance, and proceeded with the trial of the case as though it were one at law, and not one in equity, may the court on its own motion disregard such waiver and estoppel on the part of the defendants, and try the case as one in equity if it in fact be such? As to that I am not so sure. I prefer to rest my opinion on the former view.
Nor am I in accord with the prevailing opinion as to the merits. As already observed, primarily Cullen's legal right to the possession of the 494 bonds sued for by the plaintiffs confessedly was dependent upon his contract with Thompson. Under it, which at most was but a preliminary draft or sketch of a proposed contract, he claimed that whatever bonds were acquired by Thompson from Sullivan and Ellsworth inured to Cullen's benefit, if Thompson did not carry out the terms of his contract. The claim in such respect is that, if Thompson carried out the contract, then Thompson was entitled to have and possess, not only all of the bonds purchased from Sullivan and Ellsworth, but in addition thereto 538 bonds held by Cullen himself. If Thompson did not do so, then all of the bonds purchased from Sullivan and Ellsworth became the property of Cullen.
Assuming that the preliminary draft, because accepted by Thompson, constituted a contract, and that the terms of it bear the interpretation placed upon it by Cullen, which is doubtful, yet the contract in no particular was assigned by Thompson to Myrup, or to the live stock company, or to the plaintiffs, nor did either assume to carry out its terms. The record shows Myrup became associated with Thompson in the enterprise, and that Myrup had knowledge of the terms of the contract between Thompson and Cullen. But no claim is made that Thompson assigned any part of the contract to Myrup, or that Myrup by any writing or *Page 24 otherwise acquired any interest therein, or acquired any right in or to the contract which he could assert against Cullen. Nor did he otherwise become bound by its terms and conditions, so that any breach thereof or any failure to carry out the contract could by Cullen be asserted against Myrup. All that more particularly is true as to the live stock company, and still more forcibly true as to the plaintiffs.
The plaintiffs thus by purchase show title and right of possession of the 494 bonds sued for; that Cullen, who is the real defendant, showing as against the plaintiffs no right or title therein, I am of the opinion that the plaintiffs, who paid about $6,500 for such bonds so purchased by them in good faith from the live stock company are entitled to prevail; and that thus the judgment should be reversed, and the cause remanded for a new trial.