Ryman v. Lynch

• Decision Date: 22 January 1889
• Parties: RYMAN v. LYNCH
• Court: Iowa Supreme Court

41 N.W. 320

76 Iowa 587

RYMAN v. LYNCH

Supreme Court of Iowa, Des Moines

January 22, 1889

Decided January, 1889.

Appeal from Polk District Court.--HON. JOSIAH GIVEN, Judge.

ACTION to foreclose a mortgage. The court refused to send the issue arising on a counter-claim interposed by defendant to a jury. Defendant declining to proceed further, the court entered judgment for plaintiff, and defendant appeals.

AFFIRMED.

Henry S. Wilcox, for appellant.

Geo. R Sanderson, for appellee.

OPINION

GRANGER, J.

This is a proceeding in equity to foreclose a mortgage. The defendant pleaded a counter-claim, asking damage against the plaintiff for slander. The court, on motion of the defendant, refused to transfer the case to the law docket, to try the counter-claim to a jury. Afterwards, when the cause was reached for trial, the defendant demanded a jury for the trial of his counter-claim, which was refused, and these refusals are assigned as error.

The two assignments may be considered together. Appellant claims that the case of Morris v. Merritt, 52 Iowa 496, 3 N.W 504, is authority for his position. That was a law action and the defendant, by his answer, tendered a purely equitable issue. The court held that, in a proceeding properly commenced by ordinary proceedings, if it involved issues at law and also in equity, those at law were triable to a jury, and those in equity to the court without a jury. This is an equitable action in which the defendant tenders an issue which would otherwise be triable to a jury, and the query is, does the same rule as to separating the issues for trial prevail? The ruling in Morris v. Merritt, supra, was based on section 2517 of the Code, as follows: "Where the action has been properly commenced by ordinary proceedings, either party shall have the right by motion to have any issue heretofore exclusively cognizable in equity tried in the manner hereinafter prescribed in cases of equitable proceedings; and, if all the issues were such as were heretofore cognizable in equity, though none were exclusively so, the defendant shall be entitled to have them all tried as in cases of equitable proceedings."

It will be observed that the language of the section is: "Where the action has been properly commenced by ordinary proceedings, either party may, by motion," etc. Does it follow, as a legal sequence, that, in actions properly commenced by equitable proceedings, the same...