Farmer v. Loofbourrow

• Decision Date: 16 February 1954
• Docket Number: No. 8090,8090
• Citation: 75 Idaho 88,267 P.2d 113
• Parties: , 41 A.L.R.2d 774 FARMER v. LOOFBOURROW, District Judge.
• Court: Idaho Supreme Court

Page 113

267 P.2d 113

75 Idaho 88, 41 A.L.R.2d 774

FARMER v. LOOFBOURROW, District Judge.

No. 8090.

Supreme Court of Idaho.

Feb. 16, 1954.

Anderson & Anderson, Pocatello, for appellant.

O. R. Baum, Ruby Y. Brown, and R. Max Whittier, Pocatello, for plaintiff in the District Court and interested parties herein.

Gee & Hargraves, Pocatello, for respondent.

THOMAS, Justice.

This is an original proceeding in this court for a writ of prohibition to restrain respondent from setting down for trial before the court without a jury the case of Paul Albert Desfosses, doing business under the firm name and style of Paul's Plumbing & Heating, Plaintiff, v. R. M. Farmer, also known as Roland M. Farmer and Bertha G. Farmer, his wife, Defendants, and for writ of mandate to compel said respondent, as District Judge of the District Court of the Fifth Judicial District in and for the County of Bannock, to grant applicant a trial by jury.

This controversy arises out of the following proceedings had in connection with the setting of the case for trial.

Paul Albert Desfosses, doing business under the firm name and style of Paul's Plumbing & Heating, instituted an action against applicant and his wife, seeking recovery of $4511 for labor and work performed and materials allegedly furnished to applicant under several building contracts.

There is attached to the complaint as an exhibit a recapitulation sheet purportedly setting forth the numerous charges made and the credits given under the contracts. Applicant filed an answer to the complaint denying indebtedness on the contracts in any sum in excess of $1378 which under the pleadings he offered to pay in full settlement of the alleged claim; additionally, applicant in his answer alleged the installation of material of inferior quality and some fixtures which were damaged and not of the grade specified in the contracts, and otherwise sought damages with respect to several alleged negligent and careless breaches of the contracts in connection with the quality of certain materials furnished and fixtures installed. He asked that an accounting be had and that he be given credit for all damages sustained occasioned by the negligent manner in which some of the plumbing was installed, as well as credit for inferior material furnished, and that whatever balance there might be should be ascertained and judgment be entered for a sum not in excess of $1378 in full payment of his obligations under said contracts.

It is the contention of respondent that applicant has mistaken his remedy and that the appropriate method to raise the issue of whether or not he is entitled to a jury trial is by writ of review and not by writ of mandate or writ of prohibition. With this contention we cannot agree.

The denial of the right of trial by jury in a case where such right exists under the constitution or statute would result in the court exceeding its jurisdiction, Knight v. Superior Court, 95 Cal.App.2d 838, 214 P.2d 21; prohibition lies to prevent the court from exceeding its jurisdiction in this respect, Williams v. Weirich, 74 W.Va. 47, 81 S.E. 560; moreover, where a party is entitled to a jury trial as a matter of right and it is being withheld from him, mandamus may be invoked, Cloonan v. Goodrich, 161 Kan. 280, 167 P.2d 303; In re Simons, 247 U.S. 231, 38 S.Ct. 497, 62 L.Ed. 1094; McKee v. De Graffenreid, 33 Okl. 136, 124 P. 303; State ex rel. Nichols v. Cherry, 22 Utah 1, 60 P. 1103; State ex rel. Hansen v. Hart, 26 Utah 229, 72 P. 938; Brown v. Buck, Kalamazoo Circuit Judge, 75 Mich. 274, 42 N.W. 827, 5 L.R.A. 226, 13 Am.St.Rep. 438; moreover, this is so even though his refusal to do so is reversible on appeal, Lerner v. McDermott, 164 A. 864, 11 N.J.Misc. 99.

It this is an action in which applicant is entitled to a trial by jury and such right has not been waived in conformance with the provisions of the statute, Sec. 10-301, I.C., then it is obvious that the right to a writ of prohibition is available irrespective of any right of appeal or review or other remedy, Lake O'Woods Club v. Wilhelm, 126 W.Va. 447, 28 S.E.2d 915; certainly neither party who is entitled to a jury trial in such instances should be burdened with the difficulties, expense and delay, and the courts with the inconvenience, which would arise in thereafter reversing the cause and remanding it for trial before a jury. Such procedure would do violence to impartial and expeditious administration of justice and the constitutional guarantee of the right to trial by jury by all litigants.

Applicant's next contention is that the court erred in denying his demand for a jury trial. Such contention is predicated upon the theory that the action is one at law and he is entitled to jury trial under Art. 1, Sec. 7, Constitution of the State of Idaho, unless he waives such as provided under the statute, Sec. 10-301, I.C.; that he did not waive a jury trial. On the other hand, respondent contends that applicant's defense wherein he seeks an accounting is primarily and principally an equity matter and hence he is not entitled to a trial by jury as a matter of right; additionally, respondent urges that in any event applicant waived his right to trial by jury.

In this connection it is strenuously urged that applicant, having asked for an accounting which is an equitable proceedings, is not entitled to a jury trial. We do not agree with this contention. The action is for the recovery of an alleged balance for work and labor performed and material furnished under several contracts. The primary right which the plaintiff in the action asserts is purely a legal right which allegedly arises out of the failure to perform the contracts and the money judgment sought to be recovered is one for debt; the examination of the account is incidental to the action on and the defenses under the contract.

The rule in this respect is well set forth in Pomeroy's Equity Jurisprudence, 4th Ed., § 178, and the notes therein, as follows:

'* * * Even when the cause of action, based upon a legal right, does involve or present, or is connected with, some particular feature or incident of the same kind as those over which the concurrent jurisdiction ordinarily extends, such as fraud, accounting, and the like, still, if the legal remedy by action and pecuniary judgment for debt or damages would be complete, sufficient, and certain--that is, would do full justice to the litigant parties--in the particular case, the concurrent jurisdiction of equity does not extend to such case. For example, whenever an action at law will furnish an adequate remedy, equity does not assume jurisdiction because an accounting is demanded or needed; nor because the case involves or arises from fraud; nor because a contribution is sought from persons jointly indebted; nor even to recover money held in trust, where an action for money had and received will lie.' (Emphasis supplied)

See also McShane v....