Yager v. Exch. Nat. Bank of Hastings

• Decision Date: 22 September 1897
• Citation: 52 Neb. 321,72 N.W. 211
• Parties: YAGER v. EXCHANGE NAT. BANK OF HASTINGS.
• Court: Nebraska Supreme Court

52 Neb. 321

72 N.W. 211

YAGER

v.EXCHANGE NAT. BANK OF HASTINGS.

Supreme Court of Nebraska.

Sept. 22, 1897.

Syllabus by the Court.

1. Whether or not a right to trial by jury exists must be determined from the object of the action as determined by the averments of the petition, and, in case of ambiguity, by resort to the prayer.

2. If the action is in its nature one triable by jury, the right to such trial will not be defeated because, in order to accomplish the main object of the action, it becomes necessary to determine issues as to the existence of equitable rights.

3. A petition alleged that the plaintiff had executed to the defendant a deed absolute in form, but in fact a mortgage; that the defendant had sold the land, receiving more than sufficient to pay the debt. The prayer was for judgment for that surplus. Held, that the plaintiff was entitled to a jury trial.

Error to district court, Adams county; Beall, Judge.

Action by John H. Yager against the Exchange National Bank of Hastings. There was a judgment for defendant, and plaintiff brings error. Reversed.Capps & Stevens, for plaintiff in error.

Tibbets, Morey & Ferris, for defendant in error.

IRVINE, C.

The petition of Yager against the Exchange National Bank alleged that on June 18, 1890, plaintiff was indebted to the bank in the sum of $900, and on that day executed to Yeazel, then cashier of the bank, a note for $2,000, secured by mortgage on certain land; that the object of the transaction was to secure the bank the indebtedness then existing, and for future advances; that certain money was afterwards advanced; that thereafter Yeazel died, and Lane became the cashier of the bank; that on the 2d day of September, 1891, a different arrangement was made, whereby plaintiff executed and delivered to Lane a deed to the land, absolute in form, under the agreement that the bank should hold the land subject to plaintiff's disposition, and when the plaintiff should find a purchaser it would convey the property, receive the purchase money, apply the same to the discharge of an existing senior mortgage, to the indebtedness due the bank, and pay the surplus to the plaintiff; that this was the sole object of the conveyance; that November 28, 1892, the defendant sold the premises for $7,200. The petition also alleged the amount of the indebtedness of plaintiff to defendant, and charged that the bank received, over and above incumbrances and this indebtedness, $2,689, and that it had received rents for the land amounting to $600. The prayer was for a judgment against the bank for $3,389, with interest. The answer amounted, in brief, to a denial of the averments whereby plaintiff claimed that the conveyance was in effect a mortgage to the bank, and pleaded that it was a sale absolute to Lane, who, in consideration thereof, agreed to discharge the indebtedness, and in that behalf pleaded the execution by Lane to plaintiff of a written agreement to hold plaintiff harmless from the indebtedness. The reply, among other things, pleaded or attempted to plead fraud in procuring the plaintiff to accept a delivery of the last-mentioned instrument. The court, on the motion of the defendant, and against the objection of the plaintiff, referred the case to a referee to take the testimony and report on the law and the facts. The plaintiff excepted to this order. The referee reported in favor of the defendant. The report was confirmed, and the case dismissed. The plaintiff brings this judgment here for review by petition in error, assigning, among other things, as error, the order referring the case, and contending that the case was one in which the plaintiff was entitled to a trial by jury. We think this assignment is well taken. The constitutional provision is that “the right to trial by jury shall remain inviolate.” Const. art. 1, § 6. The Code provides that “issues of fact arising in actions for the recovery of money, or of specific real or personal property, shall be tried by a jury unless a jury trial is waived or a reference be ordered as hereinafter provided.” Code Civ. Proc. § 280. Of course, where the constitutional right to a trial by jury exists, the cause cannot be referred, in the absence of a waiver of that right. The effect of the constitutional provision has been frequently considered. It has been said that the guaranty is of the right to a jury trial as such right existed when the constitution was adopted. Sharmer v. McIntosh, 43 Neb. 509, 61 N. W. 727. So it has been held that, where a defendant in possession insists upon the right, an action to determine the legal title to real estate cannot be tried without a jury, in spite of the statute on that subject. Comp. St. c. 73, § 51. The reason is that in such case the proceeding is in its nature one in ejectment for the recovery of specific real property, and both the constitution and the statute entitle a party to a jury trial. Whether or not an accurate test of the existence of the right can be found by ascertaining whether, under the former procedure, the action would be one at law or one in equity, may be open to some doubt. Nevertheless, unless in exceptional cases, the test suggested is certainly sufficient, and in most of the cases in this court this has been recognized as the true test. Mills v. Miller, 3 Neb. 87; Lamaster v. Scofield, 5 Neb. 148; Roggencamp v. Converse, 15 Neb. 105, 17 N. W. 361;Dohle v. Machine Co., 15 Neb. 436, 19 N. W. 644;Kinkaid v. Hiatt, 24 Neb. 562, 39 N. W. 600; Sharmer v. McIntosh, supra. It is clear that, if this action under the old procedure would have been at law, it would be in the form of assumpsit for money had and received, so that it would fall within the general rule, and the foregoing...