Installment Bldg. & Loan Co. v. Wentworth

• Decision Date: 19 December 1890
• Citation: 25 P. 298,1 Wash. 467
• Court: Washington Supreme Court
• Parties: INSTALLMENT BUILDING & LOAN CO. v. WENTWORTH.

25 P. 298

1 Wash. 467

INSTALLMENT BUILDING & LOAN CO. v. WENTWORTH.

Supreme Court of Washington

December 19, 1890

Appeal from superior court, Clark county.

Green & King, for appellant.

Coovert & Miller, for appellee.

HOYT J.

Plaintiff sought to foreclose a lien for material furnished and labor done for defendant in the construction of a dwelling-house on the land of the defendant. Defendant, in its answer, among other things, set up a claim for damages for breach of the contract by the plaintiff. In the notice of claim of lien the defendant corporation was described as "Installment Building & Loan Association," whereas in fact, its true name was "Installment Building & Loan Company." The notice of claim of lien is attacked on the ground of this variance between it and the pleadings and proofs. We do not think that the variance was material. The corporation itself was making the improvement, and could not have been misled by the slight error in stating its name. The case might be different if the property of the corporation was sought to be charged for an improvement for which it had not contracted.

The defendant demanded a trial by jury upon the issues raised by its answer and the reply thereto. This was refused by the court, and its action in so doing is relied upon as cause of reversal. That the foreclosure of a mechanic's lien is properly cognizable in a court of equity is not denied, but it is contended that as the defendant had a right under our statute to interpose a legal defense, all rights incident to such legal defense, and the issues made thereon, went with it, including that of a trial by jury. With this contention we cannot agree. A court of equity, having once obtained jurisdiction of the cause, will retain it until final determination. 1 Pom. Eq. Jur. §§ 181, 183; Rathbone v Warren, 10 Johns. 587; Martin v. Tidwell, 36 Ga. 332 . The circumstance that in the progress of the cause an issue of fact was made that would ordinarily be triable by a jury cannot change this rule. It is true, as claimed by the appellant, that a plaintiff cannot, by joining a legal with an equitable cause of action, deprive a defendant of his right to a jury trial; but that does not aid the appellant in his contention. On the contrary, from like reasoning, it would seem to follow that a defendant, by voluntarily bringing a law question into the case, could not prevent a plaintiff from having his...