Angus v. Craven

I concur. Defendant, in the first instance, was called upon to defend her deeds to the property, against allegations that they were spurious and forged, and should be delivered up and canceled. Upon these allegations she joined issue. These issues, and the relief under them, were of equitable cognizance. That defendant at the same time filed a cross-complaint in the nature of an action in ejectment, could not operate to oust the court in equity of the jurisdiction it had acquired. Under our system, equitable and legal rights are determined in the *Page 700 same forum. It is within the discretion of the court to control the order of proof upon the issues joined. In the natural order, before defendant was entitled to a hearing upon the legal issues tendered, she must defeat plaintiffs upon the equitable issues presented by them. This was the view of the trial court, and in pursuance of it, it took to itself, as was proper, the determination of these equitable matters. The result was, that it found defendant's deeds to have been forgeries. Had it reached the opposite conclusion, then defendant might with right have insisted that the remaining issues of law be tried before a jury. But that time never arrived, and I do not concede the right of a litigant to oust a court of equitable jurisdiction in an action of purely equitable cognizance, merely by tendering additional issues which are triable at law before a jury. It is sufficient if a jury be had when those issues come to trial.

Rehearing denied.