Rees v. Gorham
| Decision Date | 19 March 1917 |
| Citation | 164 P. 88,30 Idaho 207 |
| Parties | JOHN E. REES, Respondent, v. O. W. GORHAM, Appellant |
| Court | Idaho Supreme Court |
TEST OF LEGAL OR EQUITABLE JURISDICTION-CANCELATION OF MORTGAGE-JURY TRIAL-SPECIAL INTERROGATORIES TO JURY-SPECIAL FINDINGS OF JURY NOT BINDING ON COURT.
1. Held, that the evidence in this case shown by the record is sufficient to support the findings and judgment of the lower court.
2. In determining the question of whether or not parties are entitled to a trial by jury, courts must look to the ultimate and entire relief sought, and where, in order for the court to render a judgment which would give adequate relief it would be necessary to decree the cancelation of a mortgage and the surrender of a note, such relief could only be available by the exercise of the equitable jurisdiction of the court, and the parties would not be entitled to a jury trial.
3. Where specific interrogatories are submitted to a jury in either a legal or equitable action, the findings of the jury in response thereto are not binding upon the court, which may disregard such findings if they are clearly against the evidence, and find the facts as shown by the evidence before it.
[As to right to jury trial in action at law in which equitable defense is interposed, see note in Ann.Cas. 1913D, 168]
APPEAL from the District Court of the Sixth Judicial District, for the County of Lemhi. Hon. J. M. Stevens, Judge.
Action brought for the purpose of canceling a mortgage, and to require defendant to surrender to plaintiff a note, and for the recovery of damages. Judgment for plaintiff. Motion for new trial denied. Affirmed.
Order affirmed. Costs awarded to respondent.
O'Brien & Glennon, for Appellant.
Equity will not entertain jurisdiction where there is an adequate remedy at law. (16 Cyc. 31 and cases cited; County of Ada v. Bullen Bridge Co., 5 Idaho 188, 95 Am. St. 180, 47 P 818; 2 Pomeroy's Eq. Jur., sec. 914; Allerton v. Belden 49 N.Y. 373, 379.)
A court of equity will not interfere to decree the cancelation of a written instrument unless some special circumstance exists establishing the necessity of a resort to equity to prevent an injury which might be irreparable, and which equity alone is competent to avert. (Venice v. Woodruff, 62 N.Y 462, 20 Am. Rep. 495.)
E. W. Whitcomb, for Respondent.
The respondent has the right to have the note declared void and to have the mortgage canceled, which can only be done by the court taking equitable jurisdiction of the subject matter. (Merrit v. Ehrman, 116 Ala. 278, 22 So. 514; Buxton v. Broadway, 45 Conn. 540; Benson v. Keller, 37 Ore. 120, 60 P. 918; Ferguson v. Fisk, 28 Conn. 501; Fitzmaurice v. Mosier, 116 Ind. 363, 9 Am. St. 854, 16 N.E. 175, 19 N.E. 180; Otis v. Gregory, 111 Ind. 504, 13 N.E. 39.)
The trial judge could set aside findings of the jury without granting a new trial. (Pomeroy's Eq. Jur., 3d ed., sec. 181, 231.)
The trial court having acquired equitable jurisdiction in the case, any findings of the jury would be purely advisory only. (Brady v. Yost, 6 Idaho 273, 55 P. 542; Freeman v. Stephenson, 63 Cal. 499; Harris v. Lloyd, 11 Mont. 390, 28 Am. St. 475, 28 P. 736; Weiss v. Ahrens, 24 Colo. App. 531, 135 P. 987; Peters v. Leflang, 6 Idaho 364, 55 P. 857; 10 R. C. L. 533, 534, sec. 317.)
In actions of this kind a party failing to object by demurrer or answer to the particular jurisdictions of the court, who joins in the issues and after the trial submits his case to the court, waives any objection which he otherwise might have to the right of the court to equitable jurisdiction.
This is an appeal from an order of the trial court denying a motion for a new trial; no appeal was taken from the judgment. The facts are: On and prior to Feb. 21, 1911, respondent was in the possession of and was the owner of certain lode mining claims in Lemhi county, location notices of which are recorded in the office of the recorder of that county; on said date the respondent gave appellant his promissory note in writing, dated February 21, 1911, for the sum of $ 2,210, payable two years after its date, with interest at the rate of 8 per cent per annum payable annually, and to secure the payment thereof gave appellant a mortgage on the said claims, which mortgage is also recorded in the office of the recorder of said county; on or about April 2, 1912, respondent gave appellant a power of attorney, authorizing and empowering him to sell and dispose of the said mining claims and permitting appellant to enter into the possession thereof, with the understanding that appellant should not sell said property for less than $ 5,000, which was to be equally divided between respondent and appellant in case of a sale, and respondent's note and mortgage in that event were to be canceled and discharged.
The trial court found, and the finding is supported by the evidence, that appellant "with intent to defraud and deprive the plaintiff of his right, title and interest in said mining claims and the value and the market price thereof, did wrongfully and fraudulently and with intent to deprive the plaintiff of the title and value of the said claims, permit and allow one J. A. Nash to relocate all of the said claims on or about January 1, 1913, and thereby the plaintiff lost his title in and to the said claims."
On March 24, 1913, respondent commenced his action against appellant, setting forth the facts as above alleged, and the further fact that at the time of the giving of the power of attorney above referred to appellant undertook and agreed to do the assessment work on said claims and to deduct from the sale price, when the claims should be sold, a sum sufficient to reimburse him for whatever expense he might incur in doing the assessment work. His complaint contained a prayer for damages, and for a decree canceling the mortgage of record and requiring the appellant to deliver to him the said note, and decreeing both the note and mortgage null and void.
The answer put in issue the matters set forth in the complaint, and a cross-complaint was filed for the foreclosure of the said mortgage, to which respondent answered by setting up as a defense the fraud and connivance between appellant and the said Nash, as above set forth.
The cause was tried by the court and certain interrogatories were submitted to the jury upon which they returned their verdict. The general issue was not submitted to the jury. The court, in preparing his findings of fact, conclusions of law and judgment, adopted two of the findings of the jury upon the interrogatories and rejected one. It does not appear from the record that any objection was made by appellant to this method of procedure. So far as the record discloses, objection was taken for the first time when appellant filed his notice of intention to move for a new trial.
The court having denied and overruled appellant's motion for a new trial, this appeal was prosecuted and the following errors were assigned:
[a] The evidence is insufficient to support the judgment and findings.
[b] The findings of fact and conclusions...
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