Stalter v. Stalter

• Citation: 131 S.W. 747,151 Mo.App. 66
• Parties: MRS. A. L. STALTER, Appellant, v. A. L. STALTER, Respondent
• Decision Date: 10 November 1910
• Court: Court of Appeal of Missouri (US)

131 S.W. 747

151 Mo.App. 66

MRS. A. L. STALTER, Appellant, v. A. L. STALTER, Respondent

Court of Appeals of Missouri, Springfield

November 10, 1910

Appeal from Jasper Circuit Court.--Hon. Henry L. Bright, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

H. L Shannon for appellant.

(1) Plaintiff was entitled to a trial by jury, and not having waived this right, the court erred in proceeding without a jury. R. S. 1899, sec. 691; Kitchen v. Railroad, 59 Mo. 514; Moline Plow Co. v. Hartman, 84 Mo. 610; Earl v. Hart, 89 Mo. 263; New Haven Lodge v Railroad, 100 Mo.App. 407; Scott v. Young, 113 Mo.App. 46; Baum v. Stephenson, 133 Mo.App. 187.

W. J Owen for respondent.

An answer admitting the facts constituting the plaintiffs' legal cause of action and setting up other facts of an equitable character in avoidance, converts the whole case into a suit in equity triable by the court, as in chancery. Louis v. Rhodes, 150 Mo. 501; Bouton v. Pipin, 192 Mo. 473; Schaffer v. Detie, 191 Mo. 388; Myers v. Schuchman, 182 Mo. 171; Lincoln Trust Company v. Nathan, 175 Mo. 42; Potts v. Potts, 42 A. 1056.

COX, J. Nixon, P. J., concurs; Gray, J., not sitting.

OPINION

COX, J.

Action upon a promissory note for eight hundred dollars. The answer alleges that at the time the note was given defendant and plaintiff were husband and wife. That the plaintiff was the owner of certain property in the city of Carterville, Missouri, on which she desired some further improvements to be made, and that she furnished to defendant eight hundred dollars to be expended in improvements upon her property, and that the note was given with the understanding that when the money had been so expended the note was to be surrendered; then alleges that the money was so expended and asks that the note be required to be surrendered and cancelled. The reply was a general denial. At the trial the plaintiff insisted that the issue was one at law and that she was entitled to trial by jury. The court held that the answer converted the case into an equitable action and denied the plaintiff a jury, heard the testimony, found the issues for the defendant and entered a decree cancelling the note sued upon, and plaintiff has appealed.

The only question to determine here is, as to whether the action was converted into an equitable action by the answer of defendant, thus justifying the court in denying the plaintiff a trial by jury.

It is one of the established rules of equity jurisdiction that equity will not lend its aid to a party who has an adequate remedy at law. What is an adequate remedy at law is not always easy to determine, but it seems to us there should be no difficulty in determining that question in this case. The action is upon a promissory note; the law requires the note or a verified copy thereof, to be filed with the...