Landers v. Goetz, 9401

CourtUnited States State Supreme Court of North Dakota
Citation264 N.W.2d 459
Docket NumberNo. 9401,9401
PartiesMargie LANDERS, Plaintiff and Appellant, v. Edmer A. GOETZ and Edmer A. Goetz Realty Co., Inc., Defendants and Appellees, and Terry Stevens, Richard McClure, and Ruth McClure, Defendants. Edmer A. GOETZ and Marlys J. Goetz, Plaintiffs and Appellees, v. Margie LANDERS, Defendant and Appellant. Civ.
Decision Date02 March 1978

William R. Mills, Bismarck, for appellant Landers.

Jonathan T. Garaas, of Garaas Law Firm, Fargo, for appellees Goetz and Edmer A. Goetz Realty Co., Inc.

VOGEL, Justice.

This is a consolidated appeal of two actions, which were consolidated in the district court and tried without a jury. The several parties raised questions involving title and possession of three different tracts of real estate in the city of Bismarck. Fortunately for the reader, the only issue before us is the propriety of the denial of a jury trial, and we need not enter into a detailed history of the three tracts of land.

We hold that the denial of the jury trial was error in Landers v. Goetz, and we reverse and remand.


By complaint dated January 14, 1977, delivered to the sheriff for service on January 18, 1977, Margie Landers commenced an action against Edmer A. Goetz, Terry Stevens, Richard McClure, Ruth McClure, and Edmer A. Goetz Realty Company, Inc. Hereafter, the individual parties will be referred to by their surnames, the corporation will be called Goetz Realty, and the action will be described as Landers v. Goetz.

The complaint alleges false representations as to certain real estate transactions. The prayer for relief asks (1) for a determination that the McClures have no title to or in interest in a duplex or a house on Meadow Lane; (2) for judgment against the McClures for $49,180 with interest from October 27, 1976; (3) that if that sum is not paid, the house on Thirty-second Street be sold and the proceeds applied to the debt; (4) that the plaintiff have judgment against all defendants for any balance; (5) that the plaintiff have judgment against all defendants for mental anguish for $25,000; (6) that plaintiff have judgment against all defendants for exemplary damages of $25,000; and (7) and (8) for such other relief as may be equitable and for costs and disbursements.

It will be noted that the only non-monetary relief sought is for a determination of title to two pieces of property as against the McClures only, and that the remaining claims, which are substantial, are for damages against the other defendants as well as the McClures.

Since only Goetz and Landers are involved in this appeal (and the claims of Stevens are, we are told, in abeyance), we will limit our discussion hereafter to them, to the extent we can.

Goetz served an answer and counterclaim, which he subsequently amended. He sets forth allegedly fraudulent and oppressive actions of Landers, and prays for a dismissal of the complaint, for attorney fees and costs, for $10,000 punitive damages, and for damages of $500 per month until the Meadow Lane property is restored to him, and for such other relief as may be equitable.

To this counterclaim Landers served a reply (although it was denominated an answer), asking that the counterclaim be dismissed, and demanding a jury trial. This is the first and only demand for a jury in the case. It is timely. See Rule 38, N.D.R.Civ.P.


On January 20, 1977, Goetz commenced in the county court of increased jurisdiction an action against Landers for forcible detainer of the property on Meadow Lane. It was served on Landers on January 21, two days after the complaint in Landers v. Goetz was served on Goetz Realty. The sheriff could not locate Goetz to serve the summons and complaint in Landers v. Goetz, and Goetz apparently submitted to jurisdiction by appearance in that case.

Landers answered the forcible-detainer action, Goetz v. Landers, setting up a claim of title, and demanded that the action be certified to the district court pursuant to Sections 33-01-05 and 33-01-06, N.D.C.C. The transfer was made.

No demand for jury trial was filed in this action.


The two actions were apparently consolidated for trial by the district judge upon his own motion. Thereafter, this order was entered in both actions:


"Civil Nos. 25845 and 25934

"The Court on its own motion and pursuant to the motion of Mr. Mills having consolidated the foregoing cases for trial, and the Court further having reviewed file number 25845 and found therein a demand by the plaintiff for a jury trial on the counterclaim, and the Court further finding that civil number 25845 is essentially an action for specific performance of a contract which is an equitable action, triable to the court without a jury, the claim for damages in the cases being essentially cases of law,

"IT IS HEREBY ORDERED THAT such (a) mixture of law and equity exists which would cause great difficulty to a jury and the court in its instructions to such jury, and based upon the precedent established in CIT Corporation v. Hetland, 143 N.W.2d 94 (N.D.1966) and the annotation contained at 35 A.L.R.2d 1125, the plaintiff's request for a jury trial is hereby denied and the matter shall be tried to the court.

"Dated this 31st day of March, 1977.



"Benny A. Graff

"District Judge"

The reference to the annotation at 35 A.L.R.2d 1125 is in error. Perhaps the Court intended to refer to the case of Garrou v. Teaneck Tryon Co., 11 N.J. 294, 94 A.2d 332, 35 A.L.R.2d 1125 (1953), which appears to hold that New Jersey law permits the trial of an injunctive action to the court and allows determination of damages prior to the injunction as incidental to the equitable action. 35 A.L.R.2d at 1131.

The consolidated actions were tried to the court and judgment was entered adverse to Landers, who brought the appeal now before us.


Under the Constitution of North Dakota, Section 7, the right of trial by jury is inviolate, and this right is reiterated in Section 24. The United States Constitution, Article VII, guarantees the right to trial by jury in all matters where the value in controversy exceeds $20. These rights are repeated in Rule 38, N.D.R.Civ.P.

These provisions preserve the right to a trial by jury in those cases which historically were subject to trial by jury. In the State Constitution, it is the right to the essential incidents of trial by jury as it existed in the Territory of Dakota which remains inviolate. Power v. Williams, 53 N.D. 54, 205 N.W. 9 (1925); Smith v. Kunert, 17 N.D. 120, 115 N.W. 76 (1908). There is no real difference between the Federal constitutional right and the right under Territorial law, since the latter was the same as the right at common law and under the United States Constitution. Power v. Williams, supra. There was no right to a trial by jury in cases which were equitable in nature, even though provided for by statute. Gull River Lumber Co. v. Keefe, 6 Dak. 160, 41 N.W. 743 (1889); Avery Mfg. Co. v. Smith, 14 N.D. 57, 103 N.W. 410 (1905).

Even though law and equity are now merged, the distinction between cases which are historically equitable and those which were triable in the common-law courts is still of continuing importance in determining whether one is entitled to a jury trial.

An action to quiet title is equitable in nature, and a party is not entitled as of right to a jury trial of such an action. Bolyea v. First Presbyterian Church of Wilton, N. D., 196 N.W.2d 149 (N.D.1972).

The problem of deciding when a party is entitled to a jury trial is complicated when the pleadings seek relief which is partly legal and partly equitable, as it often is, under the liberal rules of pleading which allow multiple and inconsistent claims and defenses. See Rule 8(a) and (e)(2), N.D.R.Civ.P. In such cases the courts have evolved rules which provide some guidance in the making of the decision as to the right to a jury trial. In an equitable action the bringing in of a third party whose claim is legal in nature entitles the third party to a jury trial. First Nat. Bank of Dickinson v. Kling, 65 N.D. 264, 257 N.W.2d 631 (1934). Where the complaint prays for both legal and equitable relief and the former alone is warranted by the facts pleaded, it is error to deny the defendant's demand for trial by jury. Kilgore v. Farmers Union Oil Co., 74 N.D. 640, 24 N.W.2d 26 (1946). Where a complaint demanded equitable relief only, but the defendant knew that equitable relief was impossible and only legal relief could be granted, the defendant waived his right to jury trial by not demanding it. Ziebarth v. Kalenze, 238 N.W.2d 261 (N.D.1976). Where an equitable action was commenced by the plaintiff, and the defendant admitted the facts alleged in the complaint and asserted legal counterclaims, only issues at law remained, and the defendant was entitled to a jury trial. Lehman v. Coulter, 40 N.D. 177, 168 N.W. 724 (1918).

In the case before us, the fact that two cases were consolidated for trial has no bearing on the right to a jury trial in one of them. If one party is entitled to a jury trial in one case, that right is not lost when the case is consolidated with another for trial.


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