Musgrave v. Casey, 3626

• Decision Date: 26 September 1951
• Docket Number: No. 3626,3626
• Citation: 68 Nev. 471,235 P.2d 729
• Parties: MUSGRAVE v. CASEY et ux.
• Court: Nevada Supreme Court

Page 729

235 P.2d 729

68 Nev. 471

MUSGRAVE v. CASEY et ux.

No. 3626.

Supreme Court of Nevada.

Sept. 26, 1951.

As Corrected Oct. 19, 1951.

Rehearing Denied Nov. 15, 1951.

Royal A. Stewart, Reno, for appellant.

John R. Ross, Carson City, Andrew L. Haight, Fallon, for respondents.

EATHER, Justice.

This suit was brought to establish a joint adventure in the purchase of a ranch, to establish in plaintiff an undivided one-half interest in the ranch property, and for the winding up of the joint adventure. The complaint alleges the existence of a joint adventure between the parties and the prayer of the complaint reads as follows: 'Wherefore, plaintiff prays for a decree of this court conveying to the plaintiff an undivided one-half interest in and to the property described in Exhibit 'A', attached hereto, and that one-half of the proceeds thereof in excess of the sum necessary to pay the purchase price of said ranch be adjudged to the plaintiff and that plaintiff be adjudged to be the owner of one-half of the cattle and personal property remaining; that a receiver be appointed to take charge of said monies and property pending a final determination of this cause and that said partnership and joint adventure be wound up and terminated and that plaintiff have judgment for costs of suit and for such other and further relief as to the Court seems just and proper.'

The anser of the defendants denies the existence of a joint adventure and asserts as counterclaim that plaintiff had failed to account to defendants for proceeds of sale of certain horses belonging to defendants and prays that plaintiff be required to account therefor and that defendants have judgment for the amount found due.

The assignments of error relate in major part to the procedure followed before the trial court. The principal question relates to the right of the trial court to render judgment for the defendants contrary to the verdict of the jury. We therefore address ourselves first to the matters of procedure.

For the purpose of clarity, appellant will be referred to as the plaintiff, and respondents as defendants.

On setting for trial a jury was demanded by plaintiff. By court order the matter was set for trial 'before a jury.' After trial the matter went to the jury for a general verdict upon the court's instructions as to the applicable law. In instructing the jury the court stated in part '* * * It is your exclusive province to determine the facts of the case, and to consider and weigh the evidence for that purpose. * * * The Court is not to decide or to determine these issues or questions of fact because this is not the province of the Court but is the exclusive province of the jury. * * *' The verdict of the jury was as follows: 'We, the jury in the above-entitled case do find for the plaintiff, Robert E. Musgrave.' This verdict was rendered December 1, 1949.

On December 7, 1949, and prior to the entry of judgment, defendants filed a notice of motion 'for judgment in favor of the defendants and against the plaintiff, notwithstanding the verdict of the jury.' On the same day defendants filed notice of intention to move for a new trial.

On December 13, 1949, both of defendants' motions came on for hearing before the court. The court did not specifically rule on defendants' motion for judgment notwithstanding the verdict, but stated as follows: 'You may enter the order, Mr. Clerk, that it is the judgment of the court that the defendants in this action prevail and that they have judgment and for their costs and disbursements incurred.'

No action was taken upon defendants' motion for a new trial. The court instructed counsel for defendants to prepare findings. On December 19, 1949, plaintiff filed notice of intention to move for a new trial and on February 14, 1950, that motion was argued and denied. Findings of fact and conclusions of law in favor of defendants were signed by the trial judge February 14, 1950. On the same date, judgment in favor of defendants was signed and said judgment was filed March 22, 1950. This appeal is from the judgment of the trial court and its order denying new trial.

The principal question involved in this appeal, that of the right of the trial court to disregard the jury's verdict and enter judgment for defendants, depends upon the nature of the litigation, either as an action at law or as a suit in equity. It is elemental that in a suit in equity the judgment or decree must be based upon findings of the court rather than a jury verdict; that the determinations of the jury are purely advisory. It is apparent from the prayer of the complaint that, at the very least, equitable features are present. Appellant contends that regardless of the equitable nature of the relief sought, the essential issue of the existence of a joint adventure was legal in character, and likewise the counterclaim of the defendants, and that the verdict of the jury was therefore binding on both matters.

It has been held by this court that where a case partakes of both legal and equitable issues and no segregation of such issues is made in presenting the case to the jury, and where the case is treated throughout as a proceeding in equity, the verdict of the jury must be regarded in its entirety as advisory and the right of the court to pass upon the legal as well as the equitable issues cannot be questioned upon appeal. Costello v. Scott, 30 Nev. 43, 93 P. 1, 94 P. 222, Johnston v. De Lay, 63 Nev. 1, 2, 158 P.2d 547, 161 P.2d 350.

Appellant contends that the converse of this propositon should apply as laid down by this court in Van Vleet v. Olin, 4 Nev. 95. There this court stated (holding that the trial court had erred in instructing the jury): 'But it may be claimed that this is purely an equity case, and, therefore, that the refusal to give a correct instruction asked, or a misdirection of the jury, is not an error which will authorize the reversal of the judgment, because a court of equity is not bound or controlled by the verdict in such case. We are inclined to believe that the parties could, as a matter of right, have claimed a jury to try their title to the premises in this case. But whether they could or not, the Court below treated the case all through as an ordinary action at law, and charged the jury that they were the exclusive judges of the facts, of the credibility of the witnesses, and of the weight of evidence. In rendering judgment, also, it seemed to consider itself bound and controlled by the verdict of the jury as in an action at law. When the whole case is in such manner submitted to the jury, and the Court considers itself controlled by the verdict, certainly each party has the same rights with respect to instructions that he has in any trial at law.'

Further, appellant contends that the Costello case is distinguishable in that the recognition of the proceedings by the parties as an equitable one was there clear and consistent throughout the trial; that the case was set down for trial 'by the court with the aid of a jury'; that the case went to the jury upon special issues indicating clearly that the jury was acting in an advisory capacity only; that in the case at bar the case in all regards was treated as one at law and not as one in equity.

It must be conceded that from the procedural history of this case as we have outlined it and from the manner in which the jury was utilized, this case bears resemblance rather to an action at law than a suit in equity.

The record establishes without doubt, however, that procedure notwithstanding, it was the clear understanding of the court and of counsel that the nature of the case was equitable and that the verdict of the jury was purely advisory in character. Upon the conclusion of the taking of testimony the following exchange took place between the court and counsel as reported at length in the transcript of proceedings:

'Mr. Ross (Attorney for defendant): Here is something we discussed in Chambers that comes to my mind. I am somewhat worried about it. I am speaking now of the mechanics of court procedure. Your Honor has overruled the motion for a nonsuit and the motion for a directed verdict. The matter now goes to the jury. Now the Court, in a matter of equity has the right to take the verdict of the jury as advisory. In a matter of law it's the final determination of the case. Now I am confused and I would say frankly at this moment, what is the legal nature of this pleading? Are we going to be bound as a matter of law by the verdict or is it going to be advisory on the theory that this is an equitable action?

'Court: The Court's position is that the verdict of the jury is only advisory to the Court in this proceeding. Is that correct, Mr. Stewart? Is that your position?

'Mr. Stewart (Attorney for plaintiff): I believe it is correct in that respect, Your Honor. It is an equitable action and in an equitable action the jury's verdict is advisory. That is my understanding, at least.

'Court: The Court takes the position it is a case in equity by nature of the plaintiff's complaint and the jury's verdict is advisory only. We will be in recess until one-thirty.'

Immediately following the court recess the court entertained objections to instructions and proceeded forthwith to instruct the jury, including in its instructions those already quoted relative to the jury's function with reference to the issues of fact. Does the fact that such instructions were given and that the jury was asked for a general verdict rather than for special findings in aid of the court, transform the character of the proceeding from an equitable one upon which all parties were agreed, to one at law? If so, it must be said that without further discussion between court and counsel the understanding which they had reached prior to the noon recess, for some reason not appearing in the record, had been abrogated and set aside. Such a conclusion simply does not appear to be...