Mesenburg v. Dunn

Opinion — McFarland

McFARLAND, J.

This is an appeal by defendant from a judgment in favor of the plaintiff; and the only point made for a reversal is that the court erroneously denied appellant’s demand for a jury trial.

It is averred in the complaint that plaintiff was induced by false representations, which are set forth, to enter into certain written contracts with defendant by which he agreed to purchase certain lands from the defendant, and that he paid to defendant as a part of the purchase price the sum of seven hundred and sixty dollars; and he prays for a decree of the court declaring said contracts null and void; and also that he have judgment for said seven hundred and sixty dollars. The demand for a jury was general and embraced the whole case, the language being, “demands a jury and that said cause be tried by a jury.” The main purpose of the action, to wit, to have the contracts declared null and void, clearly brought that part of the action within equitable jurisdiction; and under no view was the defendant entitled to have the whole case tried by a jury. But, waiving that point, his demand for a jury was, upon general principles, properly denied. The recovery of the part payment made under the contract was merely incidental to .the main issue, and the court, as a court of equity having jurisdiction of the main action, properly determined the whole controversy so as to prevent future litigation, no issue being raised, except as to the matters upon which plaintiff founded his demand for the equitable interposition of the court. In his answer the appellant merely denied the alleged facts as to the false representation, and no issue is raised as to the amount of money paid on the contract; and, therefore, it is not a case where a legal defense strictly cognizable in a court of law is made to a complaint which is in form a bill of equity, and is unlike Donahue v. Meister, 88 Cal. 121; 22 Am. St. Rep. 283; Newman v. Duane, 89 Cal. 597, and other cases cited by appellant. The case at bar is within the principles declared in Crocker v. Carpenter, 98 Cal. 418, where some of the cases cited by appellant are reviewed and distinguished from cases like the present one.

The judgment appealed from is affirmed.

Temple, J., and Henshaw, J., concurred.