(concurring specially).
I concur with Chief Justice TAYLOR, except that I do not concur with *286the .majority opinion in the following respects :
The action was commenced by Helen Cooper to have the court adjudicate the liens of Wassler and Burns filed on her property and for damages and attorneys’ fee, which was essentially an equity case, and the defendants, Wassler and Burns, having answered the amended complaint, .-give the trial court jurisdiction.
The constitutional guarantee of jury trial does not apply to equity cases. Morton v. Morton Realty Co., 41 Idaho 729, 241 P. 1014; Johnson v. Niichels, 48 Idaho 654, 284 P. 840; Brady v. Place, 41 Idaho 747, 242 P. 314, 243 P. 654. Therefore, Wassler and Bums could not demand as a matter of right a trial by jury on the cross-complaint. Johnson v. Niichels, 48 Idaho 654, 284 P. 840; Dover Lumber Co. v. Case, 31 Idaho 276, 170 P. 108; Burke Land & Livestock Co. v. Wells, Fargo & Co., 7 Idaho 42, 60 P. 87; Fogelstrom v. Murphy, 70 Idaho 488, 222 P.2d 1080; Anderson v. Whipple, 71 Idaho 112, 227 P.2d 351. The court having obtained equitable jurisdiction of the case will retain it for all purposes. Johnson v. Niichels, supra, followed in Fogelstrom v. Murphy, supra; Haener v. Albro, 73 Idaho 250, 249 P.2d 919. In such a case the findings of a jury are only advisory. Tomita v. Johnson, 49 Idaho 643, 290 P. 395; Johnson v. Brown, 65 Idaho 359, 144 P.2d 198; Nuquist v. Bauscher, 71 Idaho 89, 227 P.2d 83; 156 A.L.R., annotation 1147, at page 1150. The denial of the motion for a jury trial by the trial court was not error.
In the prior appeal, Cooper v. Wesco Builders, Inc., 73 Idaho 383, 253 P.2d 226, the court was dealing with pleadings only, and made the determination that the allegations concerning the FHA certificate should not be stricken from the cross-complaint. It did not attempt to determine the materiality of the certificate as evidence on a subsequent trial of the case. Hence, the admissibility of Exhibit “20” would have to be measured by evidence in the case. .Mr. Marcus’ statement that the form required -the mortgagee to certify whether there were any liens or encumbrances against the property, would show the exhibit to be immaterial to the case, because there was no showing by any evidence that any liens or encumbrances were filed against this property prior to the time of the certification for the FHA insurance, and evidence of a creditor’s meeting in September, 1949, having been admitted wherein a settlement was made among all of the creditors of Wesco Builders, concerning the Warm Springs Addition, the bank officials’ acts in making the certification to the FHA was not material to the isSties of the case.
Defendant bank and the Bank of Eastern Idaho are state institutions, and their officers are entitled to borrow money from them. § 26-603 I.C. There is no evidence that the conditions of this section were violated. Likewise, there is no evidence *287that the officials whose names appear in the deeds, Exhibits “21” and “22”, did not pay the full contract price for the property, including the construction costs of the houses located thereon, described in the deeds, or that they defaulted in their loans in any manner. Further, there is no evidence in the record to show that these bank officials in any manner mislead the cross-complainants in regard to their loans on properties owned by them in Idaho Falls project, hence, the deeds, Exhibits “21” and “22” are immaterial and irrelevant to the case, and the court did not err in denying their admission.
The judgment should be affirmed.