Bristol v. Pitchard

• Decision Date: 18 December 1908
• Citation: 71 A. 558,81 Conn. 451
• Court: Connecticut Supreme Court
• Parties: BRISTOL v. PITCHARD et al.

71 A. 558

81 Conn. 451

BRISTOL

v. PITCHARD et al.

Supreme Court of Errors of Connecticut.

Dec. 18, 1908.

Appeal from Court of Common Pleas, Fairfield County; Howard B. Scott, Judge.

Action by Darius Bristol, administrator of Robert B. R. Bristol, deceased, against Walter Pitchard and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Howard W. Taylor, for appellant.

Leonard J. Nickerson, for appellees.

BALDWIN, C. J. The only exceptions pursued by the appellant relate to the refusal of a trial by jury. The original complaint was by a conservator, and charged the defendants with fraudulently obtaining money from the ward by taking advantage of his mental weakness under a trust to help him take care of it, but with the design of unlawfully appropriating it, which they afterwards did. The plaintiff claimed "by way of equitable relief" several specified kinds of judgment; the last two being: "(4) A money judgment for $550 damages. (5) Such other general or specific, legal, and equitable relief, or both, as the plaintiff shall be entitled to." By successive amendments of the writ, different plaintiffs were substituted, and the complaint slightly remolded, but the averments as to the matters of fraud and trust and the two last prayers for judgment remained substantially the same. Issues of fact were duly joined.

With certain exceptions not material on this appeal, "civil actions involving such an issue of fact as, prior to January 1, 1880 would not present a question properly cognizable in equity," must be entered in the docket as jury cases on the written request, seasonably made, to the clerk, by either party, and may be so entered at any time by order of the court. Gen. St. 1902, § 720. The plaintiff made such request in due season, and also moved for an order of court, that the case should be put upon the jury docket for the trial of the main issues. This motion was denied. The issues closed were plainly such as prior to January 1, 1880, would have been properly cognizable in equity, and the various claims for judgment were all made "by way of equitable relief." The plaintiff, therefore, had no absolute right to a jury trial, and the defendant, who did not wish one, had an absolute right to a trial by the court, in the absence of an order by the court to the contrary. Fuller v. Johnson, 80 Conn. 493, 495, 68 Atl. 977. There can also be no question that all the issues of fact were such as might have been submitted to a jury. Pub. Acts 1905, p. 441, c. 236; Meriden Sav....