Board of Education of Salt Lake City v. West

• Decision Date: 06 December 1919
• Docket Number: 3371
• Citation: 186 P. 114,55 Utah 357
• Court: Utah Supreme Court
• Parties: BOARD OF EDUCATION OF SALT LAKE CITY v. WEST et al. (GULBRANSON, Intervener)

186 P. 114

55 Utah 357

BOARD OF EDUCATION OF SALT LAKE CITY v. WEST et al. (GULBRANSON, Intervener)

No. 3371

Supreme Court of Utah

December 6, 1919

Rehearing denied January 2, 1920.

Appeal from District Court, Third District, Salt Lake County; H. M Stephens, Judge.

Action by the Board of Education of Salt Lake City against Con West and another, in which Charles J. E. Gulbranson intervened.

From a judgment against the intervener, he appeals.

REMANDED, with directions.

Evans &amp Sullivan, of Salt Lake City, for appellant.

Booth, Lee, Badger & Rich, of Salt Lake City, for respondents.

CORFMAN, C. J. FRICK, WEBER, GIDEON, and THURMAN, JJ., concur.

OPINION

CORFMAN, C. J.

Pursuant to the provisions of Comp. Laws Utah 1917, section 3753, part of a special statute (chapter 2, tit. 62), plaintiff, the board of education of Salt Lake City, commenced this action in the district court of Salt Lake county, for the use and benefit of Sullivan Plaster Block Company, against the defendant Con West, an original contractor engaged by the plaintiff to do the reconstruction work on a certain school building destroyed by fire, and his surety on bond, the defendant United States Fidelity & Guaranty Company. Numerous subcontractors, materialmen, and laborers intervened in the action as claimants against the defendants, and all of their rights were settled and finally determined by the district court with the one exception of Charles J. E. Gulbranson, the appellant here, who, as a subcontractor under West, had undertaken to do the painting of the school building. The complaint made in intervention by the aforesaid Gulbranson, hereinafter referred to as appellant, in so far as may be material here, was in substance and to the effect that, after the defendant Con West had entered into a contract with the plaintiff board of education, hereinafter referred to as the school board, and had furnished a bond pursuant to the statute, appellant furnished labor and material in painting said building amounting to and at the agreed price of $ 930; that the said Con West paid to the appellant on account of said labor and material $ 700 and no more, leaving an unpaid balance due appellant of $ 230, for which sum a judgment is prayed, with attorney's fees and costs. The defendant West answered, denying that there was any sum due or owing appellant, and by way of cross-complaint alleged that the appellant had failed, without defendant's knowledge, before paying the $ 700 to appellant on account, to furnish certain specified materials according to specifications and contract and had used inferior materials in painting the school building, whereby and by reason whereof defendant had suffered damages to the amount of $ 727.50, for which judgment was prayed. The answer of the appellant, designated a reply, was to the effect that the defendant Con West had sustained no damage; that appellant had substantially complied with his contract; that the materials furnished by him were used with knowledge on the part of both the defendant Con West and the school board; that the work had been accepted and approved, and therefore the defendants were estopped from denying the sufficiency of the quality of the materials used and the work performed. The issues thus formed under the pleadings between the defendants and the appellant were tried to the court without a jury. The court found for the defendants and entered judgment against the appellant in defendant Con West's favor for $ 477.50 and costs. Appellant moved for a new trial, which motion was denied. He now appeals.

The errors assigned and complained of by appellant are numerous, but they may be grouped for convenience and considered as submitting for determination but three questions: First. Did the district court err in denying appellant's demand for a trial by a jury? Second. Are the findings of fact sustained by the testimony and in accord with law? Third. Do the findings of the district court support the judgment? We shall consider and discuss these propositions in the order named.

The action was brought, as hereinbefore pointed out, under and in accordance with the provisions of a special statute (chapter 2, tit. 62, Comp. Laws Utah 1917). The trial court held, and we think rightly so, that the action is one at law entitling a party to a jury trial when seasonably demanded in accordance with our statute, Comp. Laws Utah 1917, section 6782, which provides:

"Either party to an action of the kind enumerated in the preceding section [6781] who desires a jury trial of the same, or of any issue thereof, must demand it, either by written notice to the clerk prior to the time of setting such action for trial, or within such reasonable time thereafter as the court may order, or orally in open court at the time of such setting, and must at the same time deposit with the clerk the sum of five dollars; whereupon it shall be the duty of the court to order jurors to be in attendance at the time set for the trial of the cause. Money paid in accordance with this section shall be taxable as costs in the action. But the failure of a party who has demanded a jury to appear at the trial shall be deemed a waiver of such demand."

The constitutional provision (article 1, section 10, Const. Utah) leading up to the foregoing statutory enactment by the Legislature, in so far as may be material here, provides:

"A jury in civil cases shall be waived unless demanded."

The right to a jury trial in the present instance was denied the appellant by the trial court on the theory that appellant had waived such right. It is provided by statute (Comp. Laws Utah 1917, section 6827) that--

"All issues in civil actions shall be tried by the court, unless, in cases where a jury may be had, the same shall be demanded in the manner prescribed in section 6782 [hereinbefore quoted], or unless, in a proper case, a referee or master in chancery shall be appointed."

The question then arises: Did the defendant demand a jury in compliance with the statute, or did he otherwise waive his right to a trial by jury?

A proper determination of the question requires brief consideration as to the purposes of the special statute section 3753, supra, under which the action was brought by the plaintiff. The purpose of the statute, among other things, is to enable creditors of or claimants against the contractor on public buildings to collect for work and materials furnished by them ratably and equitably from the contractor and his bondsmen in all cases to the full amount and extent of the surety bond. The right is accorded to any materialman or laborer to intervene in the action within a specified time after due notice given by the plaintiff and have his right or claim adjudicated in the action. The present action was begun by the filing of the plaintiff's complaint December 1, 1917. The appellant filed his complaint in intervention December 21, 1917. The answer, counterclaim, and, cross-complaint of the contractor, defendant Con West, to the appellant's complaint in intervention was filed January 14, 1918, as was also the answer of the surety defendant, United States Fidelity & Guaranty Company. Other claimants also intervened within the statutory time, among them the Sullivan Plaster Block Company, for whom a jury trial was demanded on February 8, 1918, and one accorded it by the trial court. The case was then set for trial February 9, 1918, but did not come on for hearing until June 5, 1918, when the rights of all the claimants other than the appellant had been settled and determined. The record shows that, notwithstanding the case was originally set for trial February 9, 1918, the appellant made no demand for a jury to try his case until May 29, 1918, more than three months after the setting of the case for trial, at which time the case had narrowed down and was confined to the issues between the appellant and the defendants Con West and his surety, the United States Fidelity & Guaranty Company. As to the issues to be tried between the parties then before the court, no one of them had demanded a trial by jury in compliance with the statute according the right upon a demand or notice prior to the time of setting the case for trial. While it is true the action was brought by the plaintiff and the proceedings were being held before the court under one case name, as provided by a special statute, yet the fact remains, under the issues framed by the pleadings of the appellant and the defendants, that as to them it constituted a separate and independent action and one in which the immediate parties concerned with the issues to be tried might either demand or waive a jury trial under the statute. The appellant having failed to demand a jury to try the issues between himself and the defendants within the time allowed him under the statute, it must therefore be held that his legal right to a jury trial was waived. Davis v. D. & R. G. R. Co., 45 Utah 1, 142 P. 705; Utah State Building & Loan Ass'n v. Perkins et al., 53 Utah 474, 173 P. 950. But it is further contended by appellant that the trial court had the discretionary power to order a jury trial upon the appellant's application, although the statute had not been complied with by him, and that the court's refusal was an abuse of legal discretion. Under authority of Wood v. R. G. W. Ry. Co., 28 Utah 351, 79 P. 182, and Davis v. D. & R. G. R. Co., supra, we think the court had the power and might have exercised its legal discretion by ordering a jury trial upon appellant's application had appellant made some satisfactory showing that his failure to make timely application for a jury under the statute...