Brown v. Greer

• Decision Date: 01 July 1914
• Docket Number: Civil 1335
• Parties: BENJAMIN BROWN, Appellant, v. O. P. GREER, as Administrator of the Estate of JAMES C. GREER, Deceased, and STANCIL GREER, as Surviving Partner of GREER BROS. & BROWN, a Copartnership Composed of STANCIL GREER, JAMES C. GREER and BENJAMIN BROWN, Appellees
• Court: Arizona Supreme Court

141 P. 841

16 Ariz. 215

BENJAMIN BROWN, Appellant, v. O. P. GREER, as Administrator of the Estate of JAMES C. GREER, Deceased, and STANCIL GREER, as Surviving Partner of GREER BROS. & BROWN, a Copartnership Composed of STANCIL GREER, JAMES C. GREER and BENJAMIN BROWN, Appellees

Civil No. 1335

Supreme Court of Arizona

July 1, 1914

APPEAL from a judgment of the Superior Court of the County of Navajo. Sidney Sapp, Judge. Reversed and remanded.

The facts are stated in the opinion.

Mr Thorwald Larson and Mr. J. E. Crosby, for Appellant.

Mr. E S. Clark, Mr. J. Ralph Tascher and Mr. Neil C. Clark, for Appellees.

OPINION

FRANKLIN, C. J.

This cause originated in the superior court of Apache county. It was removed to the superior court of Navajo county upon a change of venue, and tried there January 11, 1913. The cause was tried upon the amended complaint and answer to the amended complaint. The amended complaint alleges a copartnership between the parties, and prays for an accounting and an adjustment and settlement of the copartnership affairs. The answer to the amended complaint is, in substance, a general denial. From a judgment in favor of plaintiffs for the sum of $490 and an order overruling a motion for a new trial, defendant appeals.

Defendant and appellant presents seven assignments of error. These assignments, except the one hereinafter quoted, are not essential to a decision, because they have been disposed of by a consideration of similar assignments on a similar record in the case of Brown v. Greer, ante, p. 222, 141 P. 843. The only assignment necessary to consider is as follows:

"The court erred in refusing the appellant's demand for a trial by a jury in said cases Nos. 347 and 348 made at the opening of the court on said 11th day of January, 1913; it appearing that there had been no call of the calendar on the first Monday of any month since said cases Nos. 347 and 348 were docketed in this court."

Section 23 of article 2, Constitution of Arizona, provides:

"The right of trial by jury shall remain inviolate, but provision may be made by law for a jury of a number of less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record and for waiving of a jury in civil cases where the consent of the parties interested is given thereto."

The court refused the demand of defendant and appellant for a jury, on the ground that the application, under the statutes and rules of court of Navajo county superior court, was made too late. The record does not support this view. Nothing appears in the record to show that defendant and appellant had waived his demand for a jury or had had a previous opportunity to make an application. The pleadings in this cause, however, disclose that it is wholly an equitable action. In the absence of a constitutional or statutory provision, it is the well-settled general rule that in such cases the failure of the court to submit issues to a jury is not error.

The provision of the Constitution quoted does not give the right to a trial by jury, but its purpose is to guarantee the preservation of the right. In other words, it does not create or extend the right, but by its declaration there is guaranteed the preservation of such right as it existed when the Constitution was adopted. State v. Cobb, 24 Okl. 662, 24 L.R.A. (N.S.) 639, and cases cited, 104 P. 361.

"In the absence of express constitutional or statutory provision there is no right to a jury trial in suits in equity." 24 Cyc. 111.

We must therefore determine if there is a statutory provision in Arizona giving to the appellant such a right. Consulting the laws in force when the Constitution was adopted, we find in paragraph 1389, Revised Statutes of Arizona of 1901, it is provided that:

"In all cases, both at law and in equity, either party shall have the right to submit all issues of fact to a jury."

The laws in effect before this statute was enacted were somewhat ambiguous as to the right to a jury trial in equity cases. They required construction and there was much doubt as to the legislative intent to give such right. Where there is doubt that the right exists, it is, perhaps, uniformly held by the courts that such right will be denied. 24 Cyc. 112, and cases cited.

The case of Henry v. Mayer, 6, Ariz. 103, 53 P. 590, was an equity case. Against the objection of the plaintiff the court submitted certain issues in the form of interrogatories to the jury and following the verdict of the jury the court found for the defendant. The supreme court held that the adoption by the trial court in its decree of the findings of the jury was discretionary, and must be regarded as simply the findings of the court, and not of the jury, in so far as a review upon the appeal is concerned.

The case of Egan v. Estrada, 6 Ariz. 248, 56 P. 721, which was also an equity case, was submitted to a jury on general and special issues. The lower court in this case also rendered judgment following the verdict. Construing the laws in effect prior to 1901, the supreme court of the territory held, in the two cases last cited, that the verdict of a jury in an equity case was advisory only.

Taggart Mercantile Co., v. Clark, 8, Ariz. 295, 71 P. 925, was an equity case which was submitted to a jury. This case it is true was decided since the code of 1901 went into effect, but the court's attention was directed to the provisions of paragraph 1427, Revised Statutes of Arizona of 1901, which provides:

"In all cases, whether law or chancery, where more than one material issue of fact is joined, interrogatories may, under proper instructions, be submitted to the jury by the court in writing, and they shall be answered by the jury: Provided, that such interrogatories shall be plain, terse, direct and simple, shall each be confined to a single question of fact, and shall be so framed as to be answered by yes or no, and shall be so answered."

The court held this statute to be directory only, and that the matter of the submission of interrogatories under it, in any case, is left in the discretion of the trial court, and that error could not be predicated upon the form of the interrogatories which were submitted to the jury, inasmuch as the answers could at most only be advisory. As authority for the decision, it quoted the case of Henry v. Mayer, 6 Ariz. 103, 53 P. 590, and Egan v. Estrada, 6 Ariz. 248, 56 P. 721, evidently overlooking paragraph 1389, Revised Statutes of Arizona of 1901. The case of Dooley v. Burlington Gold Min. Co., 12 Ariz. 332, 100 P. 797, was also one in equity, which was submitted to a jury, and a general verdict finding the issues in favor of the plaintiff was rendered. On considering a motion for a new trial, the court ordered:

"That the case be continued for submission to another jury, unless the parties should express a willingness that the court make findings and render judgment upon the present record and testimony."

This the parties stipulated be done. The appellant claimed that he was compelled to relinquish his right to a jury. While the court quoted with approval the case of Taggart Mercantile Co. v. Clack, supra, containing general observations on the functions of the chancellor in an equity case, the decision turned upon a stipulation by the parties with respect to a submission of the issues to a jury. The court said:

"If as he assumes, the court was about to commit error by refusing a trial by jury, his remedy to preserve his rights was not to consent to such a course, but to object thereto. Having asked the court to dispense...