Jackson v. General Finance Corp., 34341

• Decision Date: 03 February 1953
• Docket Number: No. 34341,34341
• Citation: 253 P.2d 166,208 Okla. 44
• Parties: JACKSON et al. v. GENERAL FINANCE CORP.
• Court: Oklahoma Supreme Court

Page 166

253 P.2d 166

208 Okla. 44

JACKSON et al. v. GENERAL FINANCE CORP.

No. 34341.

Supreme Court of Oklahoma.

Feb. 3, 1953.

Syllabus by the Court.

1. Under Title 12 O.S.1951 § 556, issues of fact arising in action for the recovery of specific personal property, shall be tried by a jury, unless a jury is waived.

2. The right to a jury trial is determined by the character of the pleadings and where, under the pleadings, there were issues of fact arising in the action for recovery of specific personal property, defendants were entitled to a jury trial, and where they demanded a jury trial, the Court in refusing a jury trial erroneously deprived them of their legal rights under Title 12 O.S.1951 § 556, and Art. 2, § 19 Okl.Const.

Melton, McElroy & Vaughn, Chickasha, for plaintiffs in error.

Hatcher & Bond, Chickasha, for defendant in error.

JOHNSON, Vice Chief Justice.

This is an appeal from the District Court of Grady County, Oklahoma, wherein the General Finance Corporation as plaintiff brought an action in replevin for the recovery of a Studebaker pickup, sold on time payments which payments, it was alleged, had not been made by the purchaser and which motor vehicle, in the course of the various transfers of title, was, at the time of the action, in the possession of J. W. Jackson, who obtained it from C. C. Jinks, who, in turn, had obtained it from John L. Rawson, Jr., the original purchaser, from the plaintiff. All pleadings in the cause, both by plaintiff and defendants, were properly joined. Defendants' answer contained a verified general denial under which defendants were entitled to controvert any issues of fact tendered by plaintiff's petition, and the issues formed by the pleadings were sufficient to withstand a demurrer or motion for judgment on the pleadings and was, therefore, ready to be submitted for trial and judgment upon the issues so formed.

In advance of the trial the court denied the defendants' request for a trial by jury and the case was tried by the court and judgment rendered for plaintiff.

Defendants urge this, inter alia, as error.

This is an action in replevin for the recovery of specific personal property, and the defendants were entitled to a jury trial upon the issues of fact made by the pleadings. 12 O.S.1951 § 556; Art. 2, § 19 Okl. Constitution. Section 556, supra, provides:

'Issues of law must be tried by the court, unless referred. Issues of fact arising in actions for the recovery of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived * * *.'

Under the issues joined by the pleadings herein and the above statute, defendants were entitled to have the issues of fact tried by a jury. The right to jury trial is determined by the character of the pleadings, Estes v. Oklahoma City, 175 Okl. 278, 52 P.2d 873; and where defendants were entitled to a jury trial and demanded it, the court erred in refusing them this statutory right. Thomas v. Westheimer & Daube, 87 Okl. 130, 209 P. 327; Williams v. Bumpers, Okl., 241 P.2d 945. However, it is urged that the evidence adduced in the trial by the court, after it had refused defendants a jury, showed that defendants had no legal defense, and that by reason thereof the court's action in refusing a jury was harmless.

We have held that denial of a jury trial in an action properly triable to a jury is harmless, where, under the evidence, defendants had no legal defense. Oxley v. Southland Life Ins. Co., 159 Okl. 287, 15 P.2d 43; Wilson v. Federal Tax Co., 176 Okl. 90, 54 P.2d 363; Board of Trustees of Firemen's Relief and Pension Fund of City of Marietta v. Brooks, 179 Okl. 600, 67 P.2d 4.

No attempt has ever been made to distinguish the two rules or to justify or harmonize, if possible, the rule of harmless error announced in the last named cases with the rule announced in Estes v. Oklahoma City, Thomas v. Westheimer and Williams v. Bumpers, supra, and other cases of similar import which hold that when issues of fact are formed by the pleadings under Section 556, Title 12 O.S.1951, supra, and a trial by jury is requested but refused by the trial judge, it is error because such action would deprive the litigant of the legal right to a trial by jury. This seems to us to be the true rule for the reason that if the right of trial by jury shall be and remain inviolate, Art. 2, § 19, Okla.Const., upon issues of fact arising in actions for recovery of specific personal property, unless a jury trial is waived, Section 556, supra, then such denial of trial by jury would, we think, constitute erroneous unwarranted judicial action, notwithstanding the harmless error doctrine which is based upon the failure of a litigant's evidence to sustain his alleged defense. Courts have a duty to enforce strict observance of the constitutional and statutory provisions designed to preserve inviolate, right to, and purity of...