Ripling v. Superior Court In and For Los Angeles County

• Decision Date: 24 July 1952
• Citation: 247 P.2d 117,112 Cal.App.2d 399
• Court: California Court of Appeals Court of Appeals
• Parties: . Civ. 19079. District Court of Appeal, Second District, Division 3, California

Page 117

247 P.2d 117

112 Cal.App.2d 399

RIPLING v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY et al.

Civ. 19079.

District Court of Appeal, Second District, Division 3, California.

July 24, 1952.

As Corrected Aug. 5, 1952.

Rehearing Denied Aug. 11, 1952.

Hearing Denied Sept. 18, 1952.

Bernard B. Cohen, Los Angeles, for petitioners.

Harold W. Kennedy, County Counsel, Los Angeles, for respondent Superior Court.

Richard Norton, San Francisco, Cantillon & Glover and McGinley & Hanson, Los Angeles, for real party in interest.

SHINN, Presiding Justice.

Mildred Ripling and William J. Ripling seek a peremptory writ prohibiting respondent court from proceeding without a jury in the case of Norton v. Ripling (L.A.Super. Ct. No. 556274). It is not questioned that prohibition is a proper remedy.

On February 25, 1949, Richard Norton, as guardian of the estate of Thomas J. Norton, incompetent, filed an action against Mildred Ripling, sister of Thomas. (Thomas died in 1950 and Richard now appears as administrator.) The complaint was in two counts, the first pleading facts, the second a common count for money had and received. In substance the first count alleged that between January 1942 and January 1945 Thomas J. Norton had paid over and delivered to defendant 'for safekeeping' $21,849.65; that defendant 'orally promised and agreed to hold said moneys in safekeeping for plaintiff'; that defendant paid $4,172.88 from the sum for plaintiff's use; that the guardian had made a demand for the balance but defendant refused to pay. Prayer was for judgment of $17,676.77, costs and general relief. Amended complaints were successively filed in April 1949, May 1949, August 1951 and September 1951. In some of these (including the fifth) defendant William Ripling, husband of Mildred, was joined. The last complaint omitted the common count, elaborated the 'safekeeping' allegations to ones of trust, and added allegations on information and belief that additional sums had been entrusted to defendants. The prayer of this complaint was for money, accounting and further relief. The answer to the fifth complaint admits receipt of $20,097.65, denies receipt of additional sums, and affirmatively alleges repayment to Thomas J. Norton of all sums entrusted.

After filing the first complaint in February 1949, plaintiff attached real property and two bank accounts belonging to defendants. Later the property was sold and there remains under attachment one bank account with a balance of $1,106.12, one bank account with a balance of $10,000 and a trust deed note for $13,500. In the affidavit for attachment plaintiff stated defendants are indebted to him upon an express contract for the direct payment of money 'to wit money had and received.'

In June 1949 the cause was set for trial on the jury calendar at plaintiff's request but later went off calendar by stipulation. In September 1951, defendant filed a request for trial and demanded a jury trial. Plaintiff later filed a memorandum for setting on the nonjury calendar, and the case was set on the jury calendar. Before trial, the court granted plaintiff's motion for trial by the court and granted a continuance. On defendant's application an alternative writ issued from this court.

It is fundamental that the California Constitution preserves to litigants the right to jury trial as it existed at common law in 1850. Calif.Const., art. I, sec. 7; Calif.Const.1849, art. I, sec. 3; People v. One 1941 Chevrolet Coupe, 37 Cal.2d 283, 231 P.2d 832; Farrell v. City of Ontario, 39 Cal.App. 351, 356, 178 P. 740. 'It is a right 'secured to all,' and 'inviolate forever,' in cases in which it is exercised in the administration of justice according to the course of the common law, as that law is understood in the several States of the Union.' Field, C. J., in Koppikus v. State Capitol Commissioners, 16 Cal. 248, 254. If the 'gist of the action' as framed by the pleadings is such that the issues raised would have been triable on the law side before 1850, a trial by jury is a matter of right. Grossblatt v. Wright, 108 Cal.App.2d 475, 483, 239 P.2d 19. As thus presented, the question is an historical one. Although the common law forms of action are abolished and Law and Equity are united in one forum, the problem of right to a jury trial must still be approached in the context of 1850 common law pleading. Thus, if the gist of the action is like common law debt, a jury trial must be granted when demanded. Grossblatt v. Wright, supra. And, even though the case involves equitable principles if it is one where the common law courts could and would grant relief, trial by jury is preserved. Farrell v. City of Ontario, supra, 39 Cal.App. 351, 178 P. 740; Mortimer v. Loynes, 74 Cal.App.2d 160, 168, 168 P.2d 481. The legislature may not, directly, or in the guise of procedural changes or changes in remedy, deprive a litigant of a jury in a case formerly triable at law. People v. Kelly, 203 Cal. 128, 133, 263 P. 226. People v. One 1941 Chevrolet Coupe, supra, 37 Cal.2d 283, 299, 231 P.2d 832. Likewise, a litigant may not by pleading legal conclusions sterilize the right to a jury trial as this question is determined from a consideration of 'all the facts of the case'. Hutchason v. Marks, 54 Cal.App.2d 113, 128 P.2d 573, 576. Thus the question presented here is: On the basis of the facts alleged in the fifth amended complaint and answer thereto, and the issues joined, is the case one which would have been triable at law before 1850?

Stripped of legal conclusions and reduced to ultimate facts the fifth complaint alleges that Mildred Ripling orally agreed to receive money given her by her brother Thomas J. Norton and to hold the funds until directed by him to pay them to him or for his benefit. It further alleges a demand for return of the remaining funds and refusal by Mildred Ripling to pay. The answer admits all of this except the refusal to pay, alleging that full payment had been made. There is a further controversy as to the amount turned over to Mildred. It thus appears there is one issue in the case, namely, whether all the funds Mildred received under the oral agreement were used for the benefit of Thomas J. Norton or returned to him. The prayer is for accounting, money judgment and declaration of a constructive trust in money.

The real party in interest insists, and the respondent court agreed, that this is an action to enforce a trust and thus would have been tried solely in equity prior to 1850. Petitioner insists the action is one for money and triable by the common law courts. On analysis of the pleadings and the issues framed we agree with petitioner.

A fundamental error in the position of plaintiff results from a failure to note the historical background of the remedies applicable to the type of relationship alleged to exist between defendant Mildred Ripling and Thomas Norton. Plaintiff has assumed that since it is in the nature of a trust relationship only courts of equity would enforce the obligation of the trustee. While it is true that usually only equity took cognizance of trust matters, there exists one class of cases founded on the old common law action of account which antedated the chancellor and which were triable either in law or equity. 'The idea underlying the action of account was that the defendant was entrusted with property as a fiduciary * * * for which he was under an obligation to account.' 1 Scott on Trusts 82. 'If A gave money to B to be kept and returned to A, A could bring an action of account against B.' Id. p. 85. 'As the action of account became obsolete and the actions of debt and indebitatus assumpsit were stretched to occupy at least a part of the field occupied by the action of account, the court of chancery began to take jurisdiction * * *. Today it may be said, therefore, that a trust is enforcible only in equity, except where the action of account lay at common law; and that where account lay the jurisdiction of equity is concurrent with that of the common-law courts which allow an action of debt or indebitatus assumpsit or the modern code equivalent of these actions.' Id. p. 84. As presently restated the guiding principle is that '[i]f the trustee is under a duty to pay money immediately and unconditionally to the beneficiary, the beneficiary can maintain an action at law against the trustee to enforce payment.' Rest., Trusts, § 198(1); see also Scott on Trusts, § 198.1.

Although there is some confusion in the English cases and texts, it appears that they support the position taken by Professor Scott and the Restatement of Trusts. Sutton says of the old action of account: 'Though this action lay at common law, we need only mention it to say that it is rarely met with in more modern times, owing to the substitution of other remedies for it. In the simpler cases such an action as assumpsit for money had and received was found to be sufficient, while in the more complicated cases the tendency was to proceed in Chancery, owing to the powers of that court to enforce discovery and the like, which the Courts of Common Law did not possess.' Sutton, Personal Actions at Common Law, p. 46. A typical case involving this action is Godfrey v. Saunders, (1770) 3 Wils.K.B. 73, 94, 95 Eng.Rep. 940, 952. In that case plaintiff consigned coral beads to defendant in the East Indies which were to be sold and diamonds returned in payment. Defendant had sold the beads but had not remitted the diamonds, and plaintiff brought an action of account. The court held account would lie. Modernly this would be an action to enforce a constructive trust, one thought usually to lie only in equity. But, since the diamonds were the equivalent of money, the action would be one for money the trustee was immediately to pay over and the case is within Scott's statement. A somewhat narrower view than that expressed by Scott and Sutton is found in 33 Halsbury's Laws of England (2d Ed.) where it is...