specially concurring:
I specially concur in the majority’s opinion. Although I agree with the analysis presented, I believe the result reached is dictated by a more fundamental principle— the right to trial by jury.
Article 2, § 23 of the Arizona Constitution provides in part, “The right of trial by jury shall remain inviolate.” The same right is protected by Rule 38(a), Arizona Rules of Civil Procedure. It is well-settled in Arizona and elsewhere that in actions at law, such provisions give either party the right to demand a trial by jury with a binding jury verdict. But for actions in equity, I agree with the Court of Appeals when it said, “The situation in Arizona pertaining to the right of a jury trial in an equity case is a curious one * * Hammontree v. Kenworthy, 1 Ariz.App. 472, 477, 404 P.2d 816, 821 (1965).
Section 1389 of the 1901 Revised Statutes of the Territory of Arizona guaranteed the right to trial by jury in cases at law and equity. When Arizona became a state and enacted a constitution, the 1901 statutes were generally preserved as the law in Arizona by virtue of Ariz.Const. art. 22, § 2. When the statutes were rewritten and compiled in 1913, § 1389 of the 1901 statutes was incorporated into § 508 of the 1913 statutes.
Section 542 of the 1913 statutes provided that the verdicts of juries in equity cases were binding. This section was amended by 1921 Ariz.Sess.Laws ch. 125, however, and the effect of an equity jury’s verdict was changed from binding to merely advisory.
Revised Arizona Codes were passed in 1928, 1939, and 1956. By the time of the 1956 Revised Code, the Arizona statutes no longer provided for jury trials on demand in equity cases. But where there are juries in equity cases, the role of the jury as an advisor has survived; this is now provided for in Rule 39(/), Arizona Rules of Civil Procedure.
Despite the fact that the right to demand a jury trial in an equity case has not survived to the current Arizona Revised Statutes, recent cases have, without analysis, stated that such a right still exists. E.g., Shaffer v. Insurance Co. of North America, 113 Ariz. 21, 545 P.2d 945 (1976). I disagree. A close reading of the cases cited by Shaffer reveals that they rely on other cases that either predate the disappearance of statutes guaranteeing the right to trial by jury in equity cases or merely deal with the provisions stating that when there is a jury in an equity case, the verdict rendered is advisory.
The guarantee of Ariz.Const. art. 2, § 23 is that the right of jury trial at common law is preserved. Donahue v. Babbitt, 26 Ariz. 542, 227 P. 995 (1924). Because the common law granted a jury trial as of right only in cases at law, I believe the rule in Arizona is that a party is not entitled to a jury trial with a binding jury verdict as of right in an equity case in the absence of a statute. There is no statute generally granting such a right.
The purpose of this exposition on the right to trial by jury is not to provide an exercise in interpreting and tracing statutes and distinguishing cases. Although neither party raises the issue, I believe the right to trial by jury is at the heart of this case and the case of Proffit v. Proffit, 105 Ariz. 222, 462 P.2d 391 (1969).
The wife in the instant case alleged that the husband intentionally destroyed $5,000 worth of her separate property. If this is true, wife has a cause of action for the tort of conversion. Torts sound in law, not in equity. Thus, for wife to recover $5,000 from husband, she must sue him at law.
If wife sues husband at law, he will have the right to demand a jury trial with a binding jury verdict by virtue of Ariz.Const. art. 2, § 23. If wife could recover her *589$5,000 during a dissolution proceeding, for which there is no provision for a binding jury verdict, husband would be denied his state constitutional right to a jury trial. Therefore, not only does A.R.S. § 25-318 not authorize the actions of the trial judge in the instant case, if it purported to do so, that part of the statute would run afoul of the Arizona constitutional right to a jury trial in cases at law.
The decision of Proffit v. Proffit, 105 Ariz. 222, 462 P.2d 391 (1969), is also consistent with Ariz.Const. art. 2, § 23. In Proffit, wife appropriated some of husband’s separate property, viz., a ring and some savings bonds. At the time of the dissolution, she still had the ring but had exchanged the bonds for cash. Thus, husband had an action in equity for restitution to compel return of the ring in specie and the bonds as traced to the cash. A.R.S. § 25-318 allowed the trial court to order the equitable return of the property, and no right to jury trial was involved because the cause of action was in equity.
Therefore, the results reached in the instant case and in Proffit are consistent both with A.R.S. § 25-318 and with the right to a jury trial guaranteed by Ariz.Const. art. 2, § 23.