Lehman v. Coulter

Grace, J.

This action is brought for the purpose of obtaining judgment for a promissory note in the foreclosure of a certain chattel mortgage given to secure such note, and thereby have the property described in such chattel mortgage sold and the proceeds thereof applied on the judgment.

The answer admitted the execution of the note and chattel mortgage in that it admitted all the allegations of the complaint.

The proceeding to foreclose the chattel mortgage was an equitable action triable to the court. The answer having admitted all of the allegations of the complaint, all of the matters in equity in such case were disposed of, and there remained nothing for the court to do except to give judgment for the relief demanded in the complaint.

The defendant, after admitting all of the allegations of the complaint as above, pleaded two certain counterclaims, in which the defendant affirmed the right to rccoyer certain specific amounts of money against the plaintiff. The first counterclaim was for the sum of $62.50, and the second counterclaim was for the sum of $2,090. Each of said amounts of money the defendant claimed to be due him on-account of commissions by reason of making sales or procuring purchasers for certain horses owned by plaintiff. Defendant alleged that plaintiff and defendant entered into a verbal agreement by the terms of which the defendant was authorized to sell, or secure purchasers for the plaintiff for, 200 head of horses more or less. Defendant further alleges in his counterclaims that in pursuance of such agreement he secured a purchaser for one certain stallion for $250, and that the reasonable commission for securing such purchaser was 25 per cent of the purchase price, or $62.50. In his second counterclaim he alleges the securing of a purchaser for 209 head of horses at $100 per head,— in all $20,900, and that the reasonable commission for securing such purchaser was 10 per cent of the purchase price, or $2,090.

The defendant at the time of the trial demanded a jury trial. This was denied by the court; and this presents the only question in.this appeal, which is that the court erred in denying defendant’s demand for a jury trial.

The defendant’s counterclaim was a cause of action against the plaintiff in which the relief sought consisted in the recovery of money only. The answer having admitted all of the allegations of the complaint, it must appear that at the time of the trial there were no equitable issues before the court upon'which there was any dispute.- All the matters in equity had been admitted by the answer. At the time of the trial there was nothing for the court to do except to try the issue presented by the counterclaims, which was for the recovery of money only. In such case there can be no doubt but that the defendant was qntitled to have the issues presented by his counterclaims submitted to the jury, the relief demanded by his counterclaims being for the recovery of money only; and it was reversible error for the court not to grant such demand when timely made. Under the circumstances of this case there -is no doubt, .under the provisions of the Constitution, and the laws of the state enacted in pursuance thereof, but that the right of trial by jury is preserved to the defendant. It is unnecessary in this case to enter into a fuller discussion of when the right of trial by jury is preserved in civil actions, it being certain in this case that the defendant was entitled to have the issues submitted by his counterclaims submitted to a jury, the relief demanded being for the recovery of money only, and all equitable issues having been admitted in the answer.

The judgment of the District Court is- reversed, and the case is remanded to the lower court for trial by jury only upon the issues presented by the counterclaims, all costs to await the determination of such retrial; then to be taxed against the leasing party.