Hasty v. Pierpont

• Decision Date: 09 October 1937
• Docket Number: 33583.
• Citation: 72 P.2d 69,146 Kan. 517
• Parties: HASTY v. PIERPONT, District Judge.
• Court: Kansas Supreme Court

72 P.2d 69

146 Kan. 517

HASTY v. PIERPONT, District Judge.

No. 33583.

Supreme Court of Kansas

October 9, 1937

Syllabus by the Court.

The nature of an action, whether equitable or legal, so as to entitle defendant to constitutional right of trial by jury is determined by pleadings (Const.Bill of Rights, § 5).

Where an action is essentially one justiciable at common law, jury trial is demandable as matter of right under Constitution and compulsory reference cannot be ordered (Const.Bill of Rights, § 5).

Where action was one for recovery of money allegedly due plaintiff for professional services rendered, defendant was entitled to jury trial under Constitution, since it was not suit in equity for accounting formerly cognizable in court of equity but action at law to recover money alleged to be due (Const.Bill of Rights, § 5).

That jury trial would be long and tedious and would involve presentation of complicated and technical facts as matter of evidence did not require denial of jury trial in action at law as guaranteed by Constitution nor require order for trial before referee, in absence of consent by defendant (Const.Bill of Rights, § 5).

1. The issues raised by the pleadings determine the nature of an action, and, where the action is essentially one justiciable at common law, a jury trial is demandable as a matter of right and compulsory reference cannot be ordered.

2. The fact that a jury trial would be long and tedious and involve the presentation of complicated and technical facts as matters of evidence does not justify the denial of a jury trial nor an order for a trial before a referee except by consent of parties.

Original proceeding in mandamus by L. A. Hasty against Grover Pierpont, Judge of the District Court of Sedgwick County Kan., the Division No. 3, to require the defendant to decide plaintiff's motion for appointment of a referee.

Writ denied.

Robert C. Foulston, George Siefkin, and Claude I. Depew, all of Wichita, for plaintiff.

Glenn Porter, Getto McDonald, Dwight S. Wallace, and William Tinker, all of Wichita, for defendant.

ALLEN Justice.

This is an original proceeding in mandamus to require the defendant as judge of the district court of Sedgwick county to decide plaintiff's motion for the appointment of a referee, in an action pending in his court, upon its merits and in the exercise of judicial discretion.

The action in which the motion for a reference was filed was brought by Hasty to recover an attorney fee from three named defendants for professional services alleged to have been rendered under agreement with the defendants. One of the defendants demurred to the amended petition; the demurrer was overruled; and upon appeal from that order the sufficiency of the petition was before this court in Hasty v. Bays, 145 Kan. 463, 66 P.2d 265, 267. In that case it was said:

"The theory of the appellant is and has been that the suit at bar is on an account, and that under G.S.1935, 60-739, each item thereof must be set out separately in the petition or attached thereto as an exhibit. The allegation in the petition that the employment of the plaintiff was for one purpose only and engaged the entire time of the plaintiff compels a different conclusion as to the amended petition. It is not for the recovery on separate and distinct items of service but for the entire service rendered defendants on the alleged joint adventure upon the employment contract, and, as no amount was named in the contract, it is upon the quantum meruit basis.

"We think the amended petition states facts sufficient to constitute a cause of action for the professional services rendered by the plaintiff during the period of more than five months on the one major or general purpose of the enterprise."

In due course the defendants filed separate answers in which the employment of plaintiff as alleged in the petition was denied. The answers also denied that the defendants had entered into a partnership or joint adventure as set forth in plaintiff's petition, and further denied that defendants are indebted to plaintiff in any amount.

In this state of the pleadings the plaintiff filed a written motion requesting the appointment of a referee. The defendants objected and demanded a jury trial. The court took the matter under advisement, and upon May 24, 1937, wrote counsel for the respective parties as follows: "Upon the application to refer the above entitled case I have carefully examined the statute and the decisions of the Supreme Court on this particular case and other cases notably the Estey v. Holdren, 126 Kan. 385, 267 P. 1098, and I am of the opinion that it is a case in which the defendants are entitled to a trial by jury. Of course, I should be very glad to refer this case on agreement of counsel to any one whom you can agree upon as referee, or in case of non-agreement, to appoint some one myself, but where objection is made and jury demanded I am of the opinion that a jury will have to be called to try the case."

Plaintiff contends that "on authority of Lapham v. Oil, Gas & Pipe Line Co., 87 Kan. 65, 123 P. 863, Ann.Cas.1913D, 813; Kagey v. Fox West Coast Theatres Corp., 139 Kan. 301, 31 P.2d 67, 92 A.L.R. 286, and other authorities, this action involves a long account on one side only and falls squarely under the provisions of our statutes providing for a reference."

In Estey v. Holdren, 126 Kan. 385, 267 P. 1098, 1099, this court said:

"What sort of an action did plaintiff state? Surely it was one justiciable at common law. Common counts were stated therein. It was not essentially an action for an accounting, although defendants chose to ascribe that character to it in their motion for a reference. The substance of the pleadings, not the label designated by the pleader, determines the character of an action. Lapham v. Oil, Gas & Pipe Line Co., 87 Kan. 65, 123 P. 863, Ann.Cas.1913D, 813; Boam v. Cohen, 94 Kan. 42, 145 P. 559. When a cause is properly justiciable before a jury, such a trial may not be denied without the assent of parties. Kansas Bill of Rights, §§ 5, 18; Kimball et al. v. Connor, Starks et al., 3 Kan. 414; Atchison Street Ry. Co. v. Mo. Pac. Rly. Co., 31 Kan. 660, 3 P. 284, Syl. par. 1; 34 Cyc. 778, 779; 23 R.C.L. 288. So far as the Code of Civil Procedure attempts to govern this subject, its provisions (R.S. 60--2903, 60-- 2923) must be read and construed in the light of our constitutional guaranty of jury trial where such trial is demandable as a matter of right, and a compulsory reference in derogation of such right can receive no countenance by this court-- charged as it is with the solemn and responsible duty of supervising the administration of justice in all the courts of this state.

"It is not enough to justify a compulsory reference that a jury trial would be protracted and tedious, or that a mass of technical or complicated facts constitute the evidence. While these conditions might make a reference

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