(dissenting). I am unable to concur in the majority opinion prepared by Mr. Justice Grace.
The instant ease is one to foreclose a mortgage. The defendant in his answer admits the cause of action alleged in the complaint, and sets up two counterclaims for commissions claimed to be due him for services performed in selling certain horses belonging to the plaintiff.
It is conceded that the cause of action set forth in the complaint, is one properly triable to the court without a jury. But it is asserted that, inasmuch as the cause of action set forth in the complaint was admitted in the answer, there remained no equitable issues to try; that the only issues remaining were the legal ones raised upon the counterclaims, and that defendant was entitled to have these tried to a jury. The sole question presented, therefore, is whether the defendant is entitled to a jury trial of the issues raised by the counterclaims.
.Under our statute “an issue of fact in an action for the recovery of money only or of specific real or personal property must be tried by a jury, unless a jury trial is waived . . . ór a reference is ordered. . . . Every other issue is triable by the court, which, however, may order the whole issue or any specific question of fact involved therein to be tried by a jury or by a referee.” Comp. -Laws 1913, § 7608.
It is well settled that the interposition by the defendant of a legal defense to an equitable cause of action does not change the character of the action or entitle defendant to a jury trial. Gresens v. Martin, *18027 N. D. 231, 145 N. W. 823; 24 Cyc. 126; see also Avery Mfg. Co. v. Crumb, 14 N. D. 57, 103 N. W. 410, and Merrett v. Adams County Land & Invest. Co. 29 N. D. 496, 151 N. W. 11. And by tbe great weight of authority a defendant who pleads a counterclaim in an equitable action is not (in absence of statute) entitled to a jury trial on the issues arising thereon, “notwithstanding the cross demand constitutes an independent cause of action, upon which a separate action might have been brought and a jury trial demanded.” 24 Cyc. 127, 128; 16 R. C. L. p. 213, § 30; Johnson Service Co. v. Kruse, Ann. Cas. 1914C, 850, and note (121 Minn. 28, 140 N. W. 118); Gersmann v. Walpole, 79 Misc. 49, 139 N. Y. Supp. 1.
. There is no logical reason for holding that defendant’s admission of the allegations in the complaint changed or abrogated the rule. Such admission-merely dispensed with the introduction of proof upon the issues .tendered by the complaint. The issues tendered by the counterclaims would have remained the same even though the allegations of the complaint had been denied. If, in the instant ease, defendant had denied the allegations of the complaint, it would have been necessary to have tried and determined the issue thus raised. But a determination thereof would in no manner have affected the issues raised on the counterclaims. These issues would still have remained exactly as they did upon the trial of this case.
While the different forms of civil actions have been abolished by the reformed procedure, the intrinsic distinction between legal and equitable actions has not been destroyed. Black v. Minneapolis & N. Elevator Co. 7 N. D. 129, 133, 73 N. W. 90. The existence of this distinction is recognized in the various states where the reformed procedure has been adopted. It has frequently been recognized by this court and was recognized by the legislature in § 7608, supra. The legislature therein preserved the right of trial by jury in all actions of a strictly legal, as contradistinguished from those of an equitable, nature. In cases of the latter class a right of trial by jury as a matter of absolute right does not exist.
A civil action is a proceeding instituted in a court of justice by a party known as the plaintiff against another party known as the defendant, the object of which is to obtain a judgment against the defendant for the enforcement of a civil right, or the redress or preven*181tlort of a civil wrong. Comp. Laws 1913, § 7330. See also Brower v. Nellis, 6 Ind. App. 323, 33 N. E. 672, and Bouvier’s Law Diet. It is not necessary to wait until a defendant answers in order to determine the character or object of an action. This is determinable from, and depends upon, the facts set forth in the complaint. While the defendant may raise now issues, he cannot by averments in his answer change the character of the action. This still remains as set forth in the complaint.
The legislature has nowhere intimated that it intended to permit a defendant to change an action from one in equity to one at law, by means of allegations of new matter in the answer. Nor has it said that every issue of fact relating to the recovery of money or of specific real or personal property shall be triable to a jury, or that such issue shall be so triable when presented by defendant as a defense or counterclaim in an equitable action. On the contrary it has expressly and unequivocally said that the absolute right to a trial by jury of an issue of fact exists only when such issue arises “in an action for the recovery of money only or of specific real or personal property.
Manifestly the instant case was not such an action. It was concededly one of equitable cognizance, and, hence, properly triable to the court without a jury. Not only is it so classified under our statutes, but “it is a fundamental principle that the right of trial by jury considered as an absolute right does not extend to cases of equity jurisdiction.” 7 Enc. U. S. Sup. Ct. Rep. 756.
An action properly instituted as one in equity cannot be transformed by the defendant into one at law. And as a party who institutes an equitable action will be deemed to have waived a jury, even though upon the evidence he may be entitled to either legal or equitable relief, so a party who elects to interpose a counterclaim of a legal nature in an equitable action should (in absence of qualifying statute or constitutional provision) be deemed to have waived the right to have the issues arising thereon submitted to a jury.
In my opinion the trial court was well within its rights in dénying a jury trial in this case.
Per Curiam.The petition for modification of the opinion has been filed with reference to costs only. The opinion in the case reversed the *182judgment and remanded the case to the lower court for trial by jury on issues presented by the counterclaim, and provided that all costs in the trial court await the determination of such new trial, then to be taxed against the losing party. The decision of this court was in appellant’s favor, and judgment entered in the lower court was reversed. This being true, the appellant is entitled to tax the statutory costs on appeal.
The appellant is entitled to tax the statutory costs on appeal, all other costs to he disposed of as provided for in the decision. There is nothing further in the petition for rehearing, and rehearing is denied.