Lett v. Hammond

• Decision Date: 06 December 1899
• Citation: 80 N.W. 1042,59 Neb. 339
• Parties: LETT ET AL. v. HAMMOND.
• Court: Nebraska Supreme Court

59 Neb. 339

80 N.W. 1042

LETT ET AL.

v.HAMMOND.

Supreme Court of Nebraska.

Dec. 6, 1899.

Syllabus by the Court.

1. In a law action a party is entitled to a jury trial as a matter of right.

2. The nature of an action, whether legal or equitable, is determinable from its main object, as disclosed by the averments of the pleading and the relief sought.

3. A law action is not triable without a jury because there are issues, incidental to or elemental of the main one, which are equitable in their nature.

4. The hearing and favorable determination of a motion to transfer a cause to the equity docket of a court, and that it is placed on such docket, do not necessarily decide the right of the party opponent to the motion to a jury trial in a law action. If a demand for a jury is proffered at or prior to the time the case is called for trial, its denial is error.

5. The refusal of a demand for a jury trial in the case at bar held an error which calls for a reversal of the judgment.

Error to district court, Lancaster county; Holmes, Judge.

Action by John and Carrie Lett against Charles Hammond. Judgment for defendant, and plaintiffs bring error. Reversed.Stewart & Munger and Harlan & Taylor, for plaintiffs in error.

Lamb & Adams, for defendant in error.

HARRISON, C. J.

In this action, commenced by plaintiffs in error in the district court of Lancaster county, it was alleged for cause that the defendant and plaintiffs had entered into a contract, in accordance with the terms of which the defendant was to, and did, purchase at judicial sale a quarter section of land situate in York county, this state. The title, as it was stipulated it should be, was taken in the name of John Gunsolus. It was also pleaded that it was of the further conditions of the contract that the defendant should enter into possession of the farm, manage or lease, and, if opportunity offered, sell it, and account, and pay the plaintiffs any sum of the consideration received which remained after payment of certain liens existent against the land; also, for improvements made on the farm while in defendant's care, and the adjustment of other matters noticed in the contract. It was pleaded that the defendant had violated the contract; had realized from the sale of the land a considerable sum, which by an observance of the agreement was due the plaintiffs, and for which they prayed a judgment. Issues were joined, and a motion was made for defendant that the cause be transferred to the equity docket of the court, on the ground that it involved an accounting, which motion, on hearing, was sustained, and the case was ordered placed on the equity docket of the court. To this order the plaintiffs excepted. When called for trial, the plaintiffs demanded a jury, which request was denied, as having been an element of the consideration on the hearing of the motion to docket the suit as an equitable one, and then passed upon by a judge other than the one before whom the case had been called for trial. The trial progressed without a jury, and resulted in a finding that the contract upon which the suit was predicated had been made (its existence had been put in issue by the answer); also, that, prior to the sale of the land upon which sale the claim of plaintiffs was based, the farm had been sold to the wife of the defendant, and insufficient money realized therefrom to wholly pay the liens against the land, and other matters which were to be satisfied before plaintiffs could assert any right to...