George L. Cousins Contracting Co. v. Acer Realty Co.

• Decision Date: 17 March 1937
• Docket Number: 34337
• Citation: George L. Cousins Contracting Co. v. Acer Realty Co., 102 S.W.2d 936 (Mo. 1937)
• Parties: GEORGE L. COUSINS CONTRACTING CO. v. ACER REALTY CL
• Court: Missouri Supreme Court

102 S.W.2d 936

GEORGE L. COUSINS CONTRACTING CO. v. ACER REALTY CL

No. 34337

Supreme Court of Missouri, First Division

March 17, 1937

Otto O. Fickeissen and Walter Burch, both of St. Louis, for appellant.

R. Shad Bennett, of St. Louis, for respondent.

OPINION

GANTT Judge.

Action on mechanic's lien account. The amount involved does not fix jurisdiction in this court. Even so, it is contended that a construction of section 28, art. 2, of the Constitution providing for trial by jury is presented by the record.

On motion of defendant the court appointed a referee to find the facts and the law on the issues presented by the pleadings. Plaintiff argues that the appointment of a referee was a denial of the right of trial by jury. Defendant argues that the appointment was proper under section 976, R.S.1929 (Mo.St.Ann. § 976, p. 1249), which authorizes a reference for the examination of a long account. It also argues that the action was converted into equity by defendant's counterclaim.

It is clear that a construction of said section of the Constitution is not called for by the record. On the contrary, the question of the right to a trial by jury can be determined only by a construction of the pleadings. The identical question has been...