Carder v. Weisenburgh, 95 Ky. 135

Carder v. Weisenburgh

95 Ky. 135 | Ky. Ct. App. | 1893

CHIEH JUSTICE BENNETT

delivered tiib opinion op the court.

The appellee sued the appellants on their contract for the price of repairing and remodeling their flouring mill, and asked that a lien he declared and enforced on the-*137mill for the price; lienee the suit was brought in equity. The appellants admitted the contract to repair and remodel the mill, but claimed that the work was not done in 'a workmanlike manner, and breach of warranty as to the quality of the work, and asked damages in consequence. The appellant, before the trial in equity, moved the court to transfer the legal issues thus framed to the common Jaw docket to be tried by jury. The motion was overruled and the case tried by the court; from that judgment this appeal was taken. Bid the lower court have a discretion to grant the motion or not ? Or, should it have been granted as a matter of right ? It is to be observed that the issues formed were legal issues and triable by jury, and that the only thing that gave a court of equity jurisdiction of the case is that a lien was sought to be enforced on the mill property for the price of the repairs. No lien could be enforced on the mill property except to satisfy the unpaid price of the repairs, the right to which was put in issue. That issue was a legal issue, triable by jury. Section 12 of the Civil Code provides in substance that either party to an equitable action, properly brought in equity, may, by motion, have the case transferred to the ordinary docket for the trial of any issue concerning which he is entitled to a jury trial, but either party may require every equitable issue to be disposed of before such transfer. Here, the matter that gave the court jurisdiction was the enforcement of a lien on the mill property to satisfy the price of the improvements, and if there was nothing due on account of the improvements, of course there was nothing for a court of equity to enforce. Hence, -whether or not there was any sum due for repairing the mill was the legal *138issue to be tried. This court in tbe cases of Meek v. McCall, 80 Ky., 375, and Hill v. Phillips, &c., 87 Ky., 169, has construed the 12th and other‘similar sections of the Civil Code as follows: That if the equitable right depends upon the decision of legal issues, concerning which the party is entitled to a jury trial, the case, on motion, should be transferred as matter of right to the common law docket to be tried by jury. The court has no right to refuse such transfer, unless the case be purely equitable, in which case it has discretionary power as to the transfer, and may, at its discretion, obtain the advisory aid of a jury in coming to a correct conclusion upon any question of fact involved in the issues to be tried. The Constitution of this State guarantees the right of jury trial. This means a trial according to the course of the common law, and secures the right only in cases where a jury trial was customarily used at common law; but in cases of purely equitable cognizance a trial bj- jury is not a matter of right, but it is addressed to the discretion of the chancellor. The ri^ht of trial by jury as secured to the citizen by the Constitution of the State, can not be taken away or placed at the discretion of the chancellor by converting a legal right into an equitable one, or by giving the chancellor an exclusive right to try legal issues, because there is some equitable right that arises out of the establishment of the legal issues, so as to infringe upon the right of trial by jury. That right must remain inviolate as a secured constitutional right of the citizen in all trials in which, according to the course of the common law, the right to a trial by jury exists.

The judgment is reversed, and the case remanded, with directions to award to the appellants a trial by jury.