Gull River Lumber Co. v. Keefe

• Decision Date: 14 February 1889
• Citation: 41 N.W. 743,6 Dakota 160
• Parties: Gull River Lumber Co. v. Keefe et al.
• Court: North Dakota Supreme Court

41 N.W. 743

6 Dakota 160

Gull River Lumber Co. v. Keefe et al.

Supreme Court of Territory of Dakota

February 14, 1889

Appeal from district court, Burleigh county.

Winchester & Hanitch, for appellant. John E. Carland, for respondent.

TRIPP C. J.

This was an action brought in the district court of Burleigh county to enforce a mechanic's lien by the plaintiff as a subcontractor. The defendants Keefe, Hackett, and Stewart are joined as contractors and Ward as the owner of the building against which the lien is sought to be enforced. Ward alone answers. The case was sent to a referee against the objection of the defendant and, the referee having reported the evidence to the court it made findings thereon in favor of the plaintiff, and directed a judgment to be entered, in accordance with such findings, for the amount of the plaintiff's claim, and a foreclosure of the lien to satisfy such judgment. Three alleged errors of the court below are relied upon by the appellant to reverse the case here: (1) That the lower court erred in sending the case to a referee over the objection of defendant; (2) that plaintiff had not complied with the statute relating to foreign corporations, and had no authority to sue; (3) that the plaintiff was estopped from maintaining this action, in that, on application by defendant Ward, its agent had informed him that the contractors, Keefe and others, had paid the indebtedness due for lumber used in the erection of his house, and that he, relying upon such information, had paid said contractors a large portion of the indebtedness due them, and had failed to secure himself for the further performance of said contract. We shall examine the alleged errors in the order of their assignment.

The record shows that the lower court treated the action as one in which it had the power to make a compulsory reference. The defendant contends that he was entitled to a trial by jury and has been deprived of a right under the laws of the territory and constitution of the United States. Section 236, Code Civil Proc., as amended by chapter 146, Laws 1885, provides: "An issue of fact for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial be waived. *** Every other issue is triable by the court, which, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury, or may refer it." This action is a statutory one, purely in the nature of an equitable proceeding, to enforce a statutory lien. It is not an action for the recovery of money only. The summons is one for relief. Judgment cannot be taken by default without proof of the allegations of the complaint. It is clearly one of the "other issues" triable by the court. Appellant was not, then, entitled to a trial by jury under this statute. If the statute is a valid one, the issue was triable by the court, who may either try the issues itself, or send them, or any of them, to a referee or jury, as it may elect. Here it sent the cause to a referee to report the evidence, upon which it itself determined the case.

Defendant contends that under article 7 of the amendment to the constitution he is entitled to a trial by jury. This amendment, and all preceding amendments, have been uniformly held to be limitations upon the powers of congress granted to it by the states, and as such would, of course, be limitations upon the legislative powers of the territory. The territory, as the creature of congress, could exercise no greater powers than were possessed by its creator; and if congress could not pass such a law, under which the defendant would be deprived of a right to jury trial, the territory could not, and it would be void. The amendment provides: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." Suits at "common law" are so well understood by the profession that an attempted definition would seem pedantic. "Common law actions" and "suits in equity" and "admiralty" are carefully distinguished throughout the sections and amendments of the constitution, and the forms and modes of procedure formerly were as distinct and separate as the principles governing them have ever continued to be. It is a sufficient answer to this objection to say that this is not an "action at common law." No such proceeding was ever known or obtained at common law, but every attempted enforcement of liens, whether existing by common law or under earlier statutes, in absence of express statutory proceedings, was had in equity. Under our modern system of jurisprudence, where the forms of actions have been blended, the same equitable principles must govern and control the rights of parties outside of the mere form of procedure. Trial by jury is a matter of right, and not of procedure; it belongs to the common law, and not to the equity side of the court. This being a statutory action in the nature of an equitable proceeding, the defendant had no right under the statute, the constitution, or any law of the United States, to demand a jury trial, and the court did not err in sending the facts to a referee. The mere fact that a personal judgment is permitted to be rendered in such cases does not change or affect the character of the action. As stated by the court in Davis v. Alvord, 94 U.S. 546, where it was sought to dismiss the appeal upon the ground that the action, which was one brought to enforce a mechanic's and laborer's lien under the statute, was an action at law, and should have been brought up on error: "The fact that, according to the modes of procedure adopted in the territory, a personal judgment for the amount found due is usually rendered in such cases, with directions that, if the same be not satisfied out of other property of the debtor, the property upon which the lien is adjudged to exist shall be sold, and the proceeds be applied to its payment, does not change the character of the suit from one of equitable cognizance, and convert it into an action at law."

The second objection, that the plaintiff had no authority to sue is not properly before this court. This court has held that such a defense must be taken advantage of by answer. That the plaintiff has complied with the statutes relating to foreign corporations need not be alleged in the complaint, and a failure to make such an allegation does not make the complaint open to demurrer. The plaintiff, it is true, in its complaint does allege that "it was during all of the time hereinafter mentioned a corporation created and existing under the laws of the state of Minnesota, and authorized to transact business in the territory of Dakota." And the defendant denies this in his answer, but it is the denial of a mere legal conclusion of the pleader, and created no issue of fact upon which evidence was admissible. The defendant, however, does attempt to raise the issue in his answer by way of new matter, as follows: "That the above-named plaintiff has never filed nor had recorded a duly-authenticated copy of the appointment or commission of any agent, appointed by said plaintiff, residing at some accessible point in this territory, in the county where the principal business of said plaintiff has been carried on, duly authorized to accept service of process, and upon whom service of process might have been made in any action in which said plaintiff might have been a party, and service upon such agent might have been taken and held as due service upon said plaintiff in the office of the register of deeds of the county where such an agent should have resided." A mere inspection of the pleading will make it evident that no allegation of fact is set forth which could be put in issue by a denial. It does not allege that plaintiff had not filed a copy of his appointment, but alleges it had not filed a duly-authenticated...