(dissenting).
Ab initio, Plaintiff/appellee, the Rosebud Sioux Tribe, demanded a jury trial and damages of $1,500,000. Defendant/appellant, Michael Strain, sued for malpractice, was asked in Interrogatory 2: “Do you have legal malpractice insurance which covers the allegations contained in the Complaint herein?” His answer was “No.” Defendant had entered into a contract for legal services with Plaintiff; Plaintiff alleged, inter alia, a breach of contract, and that Defendant committed malpractice thereunder. Yet, through artful advocacy, Defendant was denied a jury trial.
The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy, but the Legislature may provide for a jury of less than twelve in any court not a court of record and for the decision of civil cases by three-fourths of the jury in any court.
S.D. Const, art. YI, § 6.
Judgment was granted herein on the first day of July 1987 by the Honorable Marshall M. Gerken, Circuit Court Judge, as follows:
That the Rosebud Sioux Tribe is hereby granted Judgment against the Defendant, Michael Strain for the principal amount of $173,921.34 plus prejudgment *266interest as of June 1,1987 in the amount of $231,956.32 plus their costs and disbursements herein in the amount of $_ to be taxed by the clerk.
Throughout the course of the proceedings, Defendant’s counsel insisted upon a jury trial and furnished a MEMORANDUM OF LAW REGARDING RIGHT TO JURY TRIAL to the trial court. Extensive findings of fact and conclusions of law were entered herein by the trial court, as this case was tried to the court, for all pleas that this case be tried before a jury went unheeded.
In closing argument, before this Court at the State Capitol, Attorney J.M. Grossen-burg, in response to a question from the bench, was asked why, just thirty days before trial, did Plaintiff, legally, take a new pleading stance. Attorney Grossen-burg indicated that the Plaintiff had “jettisoned all theories but constructive trust.” He further reflected, at oral argument of this case, that Plaintiff did it because of efficiency and to avoid a jury trial.
This special writer is not seeking to moralize any conduct of an attorney in this state hereby. However, all citizens, including attorneys, right or wrong, when confronted with a damage plea and a damage award such as witnessed in this case, are entitled to a jury trial. I base this dissent upon the legal premise that Defendant was intentionally deprived of a jury trial. Under SDCL 15-6-38(a), we find: “The right of trial by jury as declared by article VI, section 6 of the Constitution of South Dakota or as given by a statute of South Dakota shall be preserved to the parties inviolate.” To deny Defendant Strain a jury trial was reversible error.
The last prayer for relief which I can find in this record is an AMENDED COMPLAINT dated the second day of September, 1986. Uniquely, the circuit court judge, per this Amended Complaint, entered an Order from the bench that the Plaintiff amend his pleading. To the previous pleading, Plaintiff added: “16A. Attorney Strain fraudulently concealed his conflict of interest”; and “17A. That Attorney Strain was unjustly enriched in the amount of $173,921.34 in kick-back payments .In said 17A, it was further alleged that Attorney Strain had “an implied trust to account for this money to the Rosebud Sioux Tribe, but failed to do so.” One schooled in the law, and who would follow the theory of pleading in a case, would necessarily arrive at a conclusion that a terrible wrong has been inflicted upon this lawyer. Studying theory, and then applying it to the facts at hand, places a legal mind in a zone I shall call Election of Remedies. Here, the Plaintiff could have brought an action at law to recover damages resulting from fraud or the breach of some duty giving rise to an implied trust. Plaintiff could have sued in equity to impress a trust upon the property. But, to have done so, i.e., instituting either action, would have created an Election of Remedies inconsistent with the other. Plaintiff sued, pursuing its remedy at law, by instituting a legal malpractice action. Approximately thirty days before trial, as stated above, a tactical maneuver was made whereby Plaintiff switched theories. The switch was an artful ploy to deprive this lawyer of a jury trial. By 1980, the res upon which the trial court impressed a constructive trust, was absolutely dissipated. How, then, could a trial court impress a constructive trust upon a “nothing”? After impressing the constructive trust upon “nothing,” a judgment of approximately one-half million dollars was granted against this lawyer. Inconsistent remedies were, therefore, pursued. An Election of Remedies must be made where a party has a purported right to impress a trust upon property. 25 Am.Jur.2d Election of Remedies § 30 (1966). There was inconsistency in theory.
Pursuing our conceptualization further, if a constructive trust is imposed, a beneficiary has two options, i.e., follow the trust property and its proceeds or recover damages for wrongful conversion. 76 AmJur. 2d Trusts § 253 (1975). Why the abandonment of the pursuit of the trust property and its proceeds? The answer is simple: By 1980, the res whereupon the trust could be impressed was dissipated down to the paltry sum of $85. Therefore, counsel for *267the Plaintiff whirled in its conceptualization, even though Plaintiff had “jettisoned all theories but constructive trust,” per its statements before the appellate bench, and demanded damages for conversion of the trust res. Conversion is an action at law for damages. SDCL 21-3-3. Note that the amount of $173,921.34 in the Amended Complaint, upon which Plaintiff alleges the Defendant had “an implied trust to account for this money to the Rosebud Sioux Tribe, but failed to do so,” is the identical principal amount awarded in the judgment. In Skoglund v. Staab, 312 N.W.2d 29, 30 (S.D.1981), we expressed:
The right to a jury trial is guaranteed both litigants in Article VI, § 6 of the South Dakota Constitution and SDCL 15-6-38(a), (b). This right, however, does not exist in all civil cases. In cases where the pleadings seek equitable relief or the legal relief is incidental, a jury trial is a matter for the trial court’s discretion. Lounsberry v. Kelly, 32 S.D. 160, 142 N.W. 180 (1913), on rehearing 143 N.W. 369 (1913); Thomas v. Ryan, 24 S.D. 71, 123 N.W. 68 (1909). Conversely, when the action is at law, either party has a right to a jury trial. Thomas v. Mettel, 41 S.D. 322, 168 N.W. 651, 652 (1918); Purcell v. International Harvester Co., 37 S.D. 517, 159 N.W. 47 (1916). To determine whether the action arises at law or equity we look to the pleadings including the complaint, answer, cross-complaint and prayer for relief. Arlt v. Langley, 56 S.D. 79, 227 N.W. 469, 473 (1929).
When you plead for money, and your prayer is over one-half million dollars, how in tarnation can the legal relief be “incidental”? Money judgment they wanted, and money judgment they got.
From what I can read in this record, I cannot approve of this Defendant’s conduct. But this is not an ethics case. This is not a disbarment or disciplinary proceeding. A defendant’s right to a trial before a jury was forged in the fires of Lexington and Concord, and I do not wish to erode that right. Captioned “Prayer for Relief,” the Plaintiff prayed for relief, by way of a total substitution to the November 19,1981 complaint and pleaded as follows: “WHEREFORE, plaintiff prays for judgment against defendant in the amount of $173,921.34 trebled, or $521,764.02.” Under such a prayer for relief, this was a demand, at law, for damages. As the United States Supreme Court has observed: “[Ijnsofar as the complaint requests a money judgment it presents a claim which is unquestionably legal.” Dairy Queen, Inc. v. Wood, 369 U.S. 469, 476, 82 S.Ct. 894, 899, 8 L.Ed.2d 44, 50 (1962).
This solution in effect assumes that substantive ideas of equity have worked over into law, so that mistake, fraud, unjust enrichment, undue influence and so on, though having equitable origins, are now fully legal. Under this solution no case becomes an equitable case merely because of the substantive right or defense involved. It becomes equitable only when some in personam order, backed by contempt power, is issued. In other words, under this solution, it is the remedy that makes the case equitable, not the right.
D. Dobbs, Handbook on the Law of Remedies, § 2.6, at 74 (1973) (emphasis in original). Dairy Queen stands “as a reaffirmation of the historic American commitment to the jury_” J. Friedenthal, M. Kane, & A. Miller, Civil Procedure, § 11.6, at 497 (1985). We should not relax this commitment.
There can be no doubt, absolutely no doubt whatsoever, that these pleadings demanded a money judgment notwithstanding the remarks of Attorney Grossenburg before the bench. Reference is made hereby to Kneeland v. Matz, 388 N.W.2d 890, 892 (S.D.1986), which held, inter alia, that “a party has a right to a jury trial if the action is one at law_” A further holding was that a constitutionally protected right to trial by jury is preserved if in some stage of a proceeding the right to a jury trial is given. Id. at 892. S.D. Const, art. VI, § 6. See also Orr v. Kneip, 287 N.W.2d 480, 485 (S.D.1979).
Accordingly, I would reverse this case entirely so that the constitutional mandate would be fulfilled and Defendant be grant*268ed a right to a jury trial before a judgment of close to one-half million dollars is granted against him. Lawyers — who are constantly fighting to protect people’s rights in our courts — should not be denied the very rights that they seek to protect. As I stated in my dissent in Light v. Elliott, 295 N.W.2d 724, 727 (S.D.1980), where I upheld the cause of a lawyer: “Lawyers are people, too.”