dissenting.
[¶ 37] I dissent.
[¶ 38] This case was scheduled for a jury trial. The trial court, on its own initiative and without briefing by the parties, denied the jury trial and determined the case would be tried before the court. The trial court’s explanation for canceling the jury trial was short and over simplified and its reasoning and analysis undeveloped. The majority now advances a web of theories involving equity and time barred legal actions to justify the trial court’s decision many of which were not advanced by the parties nor articulated or relied upon by the trial court.
[¶ 39] “On appeal our review should not simply be to seek reasons to justify the denial of trial by jury....” Land Office Co. v. Clapp-Thomssen Co., 442 N.W.2d 401, 407 (N.D.1989) (VandeWalle, J., dissenting). See also 9 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure: Civil 2d § 2302.1 (1995) (“At a minimum [Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d *581988 (1959), and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962) ] lend impetus toward finding a right to trial by jury in doubtful cases.”); 8 James Wm. Moore, Moore’s Federal Practice § 38.10[l][a] (3d ed. 1998) (“It has been held that the right to jury trial under the Seventh Amendment should be liberally construed, and that when there is doubt, the balance is tilted in favor of a jury trial”)
[¶ 40] North Dakota Const, art. I, § 13 preserves the right to a jury trial as it existed when the Constitution was adopted, and thus preserves the right to a jury trial in all cases in which it was a right at common law. General Elec. Credit Corp. v. Rickman, 338 N.W.2d 814, 817 (N.D.1983). Blackst’one viewed trial by jury as “the glory of the English law” and “the most transcendent privilege which any subject can enjoy.” Ill William Blackstone, Commentaries *379. This Court has also exhibited a high regard for trial by jury. “This State has been more liberal than most in construing the guarantee of jury trial.” Dobervich v. Central Cass Pub. Sch. Dist. No. 17, 283 N.W.2d 187, 190 (N.D.1979). This “indicates the high regard with which we view the right to a jury trial.” General Elec. Credit Corp. v. Richman, 338 N.W.2d 814, 818 (N.D.1983).
[¶ 41] But whether a party is entitled to a jury trial as a matter of right depends on whether the case is one at law or one in equity. Barker v. Ness, 1998 ND 223, ¶ 6, 587 N.W.2d 183; Farm Credit Bank v. Rub, 481 N.W.2d 451, 458 (N.D.1992). “In an equitable proceeding there is no absolute right to a trial by jury.” Barker, at ¶ 6. On the other hand, “[t]he right to a trial by jury in actions at law is a basic and fundamental part of our system of jurisprudence.” General Elec. Credit Corp. v. Rickman, 338 N.W.2d 814, 817 (N.D.1983). “An action at law for the recovery of money only is triable to a jury as a matter of right.” Id. “Actions for partition and quiet title are equitable actions.” Dakota Bank & Trust Co. v. Federal Land Bank, 437 N.W.2d 841, 844 (N.D.1989). One who elects to rescind a contract may choose to bring a claim in equity under N.D.C.C. § 32-04-21, or may bring an action at law under N.D.C.C. § 9-09-04. Barker, at ¶ 10. The trial court did not decide which theory of rescission the Intervenors were pursuing, and in the posture in which this case is presented, including equitable issues as well as issues at law, we should not decide that issue either.
[¶ 42] “The problem of deciding when a party is entitled to a jury trial is complicated when the pleadings seek relief which is partly legal and partly equitable.” Landers v. Goetz, 264 N.W.2d 459, 462 (N.D.1978). “In an equitable action the bringing in of a third party whose claim is legal in nature entitles the third party to a jury trial.” Id. “Generally, where both damages and an injunction are sought, the parties are entitled to a jury trial as to the damage claim unless it is merely incidental to and dependent on the right to an injunction.” General Elec. Credit Corp. v. Rickman, 338 N.W.2d 814, 818 (N.D.1983). There is no right to a jury trial on a claim or counterclaim for damages if it is incidental to or dependent upon a primary claim for which a jury trial is not allowed. Sargent County Bank v. Wentworth, 547 N.W.2d 753, 761 (N.D.1996); Farm Credit Bank v. Rub, 481 N.W.2d 451, 458 (N.D.1992); First Nat’l Bank & Trust Co. v. Brakken, 468 N.W.2d 633, 635-6 (N.D.1991). “A court does not err in denying a jury trial where the monetary award sought is incidental to, or intertwined with, equitable relief. It does err when it denies a jury trial because of its determination that legal issues in the case are merely incidental to equitable ones.” Golden v. Kelsey-Hayes Co., 22 C.C.P.A. 744, 73 F.3d 648, 661 (6th Cir.1996). “Whenever the issues are so interrelated that a decision in the nonjury portion might affect the decision of the jury portion, the jury portion is to be tried first, since otherwise the party entitled to the jury trial would *582be deprived of part or all of his right to a jury trial.” Landers v. Goetz, 264 N.W.2d 459, 463 (N.D.1978).
[¶ 43] In Landers v. Goetz, 264 N.W.2d 459 (N.D.1978), Landers sued McClures to determine title to land, and sued McClures and Goetz for damages. This Court recognized an action to quiet title is an equitable action for which one is not entitled to a jury trial, as of right, but, nevertheless, said the parties were entitled to a jury trial: “But when Goetz not only answered, setting forth a basis for dismissal of the complaint, but also counterclaimed, setting forth a claim for money damages, his counterclaim asked for relief which was strictly legal, as opposed to equitable, and entitled either party to demand a trial by jury as of right. Suits for damages are suits for legal relief.” Id. at 462.
[¶ 44] Nor is the fact an equitable proceeding is involved preclude a jury trial in all instances. Even though there is no absolute right for a jury trial in an equitable action, “a trial court may submit, in its discretion, factual questions to an advisory jury.” Sargent County Bank v. Wentworth, 500 N.W.2d 862, 872 (N.D.1993). In Sprenger v. Sprenger, 146 N.W.2d 36, 37, Syllabus ¶ 4, (N.D.1966), this Court, in construing N.D.R.Civ.P. 39, held:
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 with a jury whose verdict has the same effect as if trial by jury had been a matter of right. Rule 39(c), N.D.R.Civ.P.
Under Rule 39, F.R.Civ.P., from which N.D.R.Civ.P. 39 was derived, “the court always may order a jury trial with the consent of both parties or the court may try an issue with an advisory jury.” 9 Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 2331 (1995). The purpose of Rule 39, F.R.Civ.P., “is to make possible the complete fusion of law and equity in one form of civil action.” Id. It “permits the time-saving trial of jury and nonjury issues at one time.” Id. “The issue, not the action, is the basic unit for determining jury-tria-bility under Rules 38 and 39, and the rules contemplate that in the one action some issues will be tried to the court and others will be tried to the jury.” Id. Significantly, “ ‘when a case contains claims triable to a jury and claims triable to the court that involve common issues of fact, the jury’s resolution of those issues governs the entire case.’ ” Kolstad v. American Dental Ass’n, 108 F.3d 1431, 1440 (D.C.Cir.1997), quoting Bouchet v. National Urban League, Inc., 730 F.2d 799, 803 (D.C.Cir.1984). Otherwise, parties would be denied their right to a jury trial, and there would exist the possibility of unseemly and unnecessary conflict between a jury’s findings and the trial court’s findings.
[¶ 45] Sheila Murphy’s complaint against Tom Murphy sought equitable partitioning of real property allegedly owned by the parties as tenants in common. Tom Murphy’s answer asserted the land was owned by a partnership of he and Hugh R. “Red” Murphy. The Intervenors’ answer alleged all but 400 acres of the land was owned by a partnership consisting of Red, Tom, Jack and Dorothy Murphy. The Intervenors’ counterclaim alleged Michael Maus and Red Murphy defrauded them into selling 400 acres of land for less than its worth, demanded its return, and offered to return the purchase price. The counterclaim also alleged the Intervenors owned a 22 percent interest in the partnership. The counterclaim sought a judgment providing the Intervenors were entitled to the 400 acres, dismissal of the partition complaint, and damages. Although the complaint sought equitable relief, the Intervenors’ counterclaim is legal in nature and is not incidental to or dependent upon the equitable relief sought in the complaint. There are issues of fact common to the legal and equitable claims.
[¶ 46] Surveys consistently indicate the public’s trust and confidence in our judicial system is at its highest in the public’s *583regard for the jury system. Judges should not seek reasons to deny jury trials when they are requested. I have previously expressed concern over a court’s apparent position that jury trials are the exception rather than the rule. Land Office Co. v. Clapp-Thomssen Co., 442 N.W.2d at 407 (VandeWalle, J., dissenting).
[¶ 47] Judges should not be afraid the case will “get out of control” if heard by a jury nor should judges foster a belief that we are the only ones really competent to determine the factual issues in the case.
[¶ 48] Assuming the majority’s convoluted analysis somehow produces a conclusion the appellants were not entitled to a jury trial as a matter of right, a conclusion with which I obviously do not agree, the trial judge should have allowed the jury trial under N.D.R.Civ.P. 39(c). In the circumstances of this case where a jury was demanded and scheduled, none of the parties objected and the court’s sua sponte decision to derail the jury proceedings was based on cryptic reasoning at best, the public can only assume judges believe juries are incapable of deciding complex cases. Perhaps it is our fear lawyers cannot adequately present a complex case or we, as judges, cannot adequately instruct the jury in such a case which causes us to seek reason why a matter should not be tried by a jury. If so, I believe those fears are largely unfounded. We can do better than to leave the parties and the public with this impression.
[¶ 49] NEUMANN, J., concurs.