Lead Opinion
David Steed, et al., petition this Court by mandamus to require the district judge, to vacate his order denying Steed a jury trial on the legal causes of action asserted in their compulsory counterclaim. We grant the writ.
Idaho First National Bank instituted a mortgage foreclosure action against Steed to recover amounts due on his allegedly defaulted loans. Steed filed a separate action against the Bank alleging various causes of action grounded both in law and equity, including causes of action for breach of contract, fraud, constructive fraud and conspiracy, negligence, intentional infliction of emotional distress, constructive trust and a claim for injunctive relief against unfair competition. Steed made a proper and timely request for a jury trial on the legal causes apart from the equitable causes to be tried by the court. The court ordered that the two cases be consolidated, and Steed’s complaint was properly denominated a compulsory counterclaim pursuant to I.R.C.P. 13(a) because it arose from the same transaction as the Bank’s complaint.
The Bank filed a motion to strike Steed’s demand for a jury trial on the ground that this is primarily a foreclosure action in equity, the counterclaim was based upon issues necessarily determined in the foreclosure action, and Steed’s counterclaim also asked for equitable relief. The district court granted the motion and struck the demand for jury trial.
I.
The determination of the issue presented on appeal should be made in the context of the history and purposes of the right to trial by jury. Our forefathers wisely provided in Article 1, Section 7 of the Idaho Constitution: “The right to trial by jury shall remain inviolate ...” They so provided because they recognized that the jury system is the single most important guardian of the people’s right to be protected from oppressive and overreaching government.
Few Americans realize that the right to jury trial in civil cases has almost been lost in England. English judges, with the acquiescence of a compliant bar, have totally eliminated the right to trial by jury in civil cases except in cases of libel or slander. The English themselves seem to have forgotten the words of their eminent jurist, Blackstone, who wrote that trial by jury is:
... the glory of the English law ... [i]t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected in his property, his liberty, or his person but by the unanimous consent of twelve of his neighbors and equals.
Blackstone Commentaries 79.
Some American judges and legislators have similarly lost touch with the following language in our Declaration of Independence:
[George III] has combined with others to subject us to a jurisdiction foreign to our Constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation: ... For depriving us, in many cases, of the benefits of trial by jury ...
The French philosopher and essayist, De Toqueville, who understood and appreciated democracy in America with keener insight than any other observer of the Nineteenth Century, stated that the jury system in America:
... places the real direction of society in the hands of the governed ... and not in ... the government ... He who punishes*249 the criminal ... is the real master of society. All the sovereigns who have chosen to govern by their own authority, and to direct society, instead of obeying its direction, have destroyed or enfeebled the institution of the jury.
Those who believe in strict construction of our Constitution recognize that the judiciary’s oath to “support and defend the Constitution” requires that we resist the temptation to enhance judicial power through encroachment into the provinces constitutionally delegated to the jury.
II.
Our forefathers’ wise constitutional mandate is reflected today in I.R.G.P. 38(a):
Jury trial of right — Right preserved.— The right of trial by jury as declared by the Constitution or as given by a statute of the state of Idaho shall be preserved to the parties inviolate except in the small claims department. (Emphasis added).
Constitutional provisions should be construed so as to give them practical effect according to the intention of the framers. See Fletcher v. Gifford,
Rule 13(a) states Idaho’s law for compulsory counterclaims:
Compulsory counterclaims. — A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.... (Emphasis added).
This rule is identical to Federal Rule 13(a) and is mandatory in its directive. Although we are not bound by the federal rule, inasmuch as the Idaho rule is based upon a federal rule of the same nature, the federal court’s interpretation of the rule is persuasive. Folkner v. Collins,
The leading case with respect to Federal Rule 13(a) is Beacon Theatres, Inc. v. Westover,
The holding in Beacon Theatres was that where both legal and equitable issues are presented in a single case, “only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims. [Beacon Theatres, Inc.,359 U.S. at 510-511 ,79 S.Ct. at 957 .] That' holding, of course, applies whether the trial judge chooses to characterize the legal issues presented as “incidental” to equitable issues or not. [Footnote omitted.] Consequently, in a case such as this where there cannot even be a contention of such “imperative circumstances,” Beacon The-atres requires that any legal issues for which a trial by jury is timely and properly demanded be submitted to a jury.
Dairy Queen, Inc. v. Wood,
While stressing the right to a jury trial on legal issues, the Court explained in Beacon Theatres, Inc.:
The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies. At least as much is required to justify a trial court in using its discretion under the Federal Rules to allow claims of equitable origins to be tried ahead of legal ones, since this has the same effect as*250 an equitable injunction of the legal claims. And it is immaterial, in judging if that discretion is properly employed, that before the Federal Rules and the Declaratory Judgment Act were passed, courts of equity, exercising a jurisdiction separate from courts of law, were, in some cases, allowed to enjoin subsequent legal actions between the same parties involving the same controversy. This was because the subsequent legal action, though providing an opportunity to try the case to a jury, might not protect the right of the equity plaintiff to a fair and orderly adjudication of the controversy. See, e.g., New York Life Ins. Co. v. Seymour, 6 Cir.,45 F.2d 47 ,73 A.L.R. 1523 . (Emphasis added).
Id.
If there should be cases where the availability of declaratory judgment or joinder in one suit of legal and equitable causes would not in all respects protect the plaintiff seeking equitable relief from irreparable harm while affording a jury trial in the legal cause, the trial court will necessarily have to use its discretion in deciding whether the legal or equitable cause should be tried first. Since the right to jury trial is a constitutional one, however, while no similar requirement protects trials by the court, that discretion is very narrowly limited and must, wherever possible, be exercised to preserve jury trial. As this Court said in Scott v. Neely,140 U.S. 106 , 109-110,11 S.Ct. 712 , 714,35 L.Ed. 358 : “In the Federal courts this [jury] right cannot be dispensed with, except by the assent of the parties entitled to it; nor can it be impaired by any blending with a claim, properly cognizable at law, of a demand for equitable relief in aid of the legal action, or during its pendency.” This long-standing principle of equity dictates that only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims. See Leimer v. Woods, 8 Cir.,196 F.2d 828 , 833-836. As we have shown, this is far from being such a case. (Footnotes omitted, emphasis added).
Id. at 510-511,
We abide in the authority and the clear analysis of the Court in Beacon Theatres, Inc. Thus, it is irrelevant whether the legal issues are “incidental” to the equitable claims, since the right to a jury trial is specifically guaranteed under both Idaho Constitution art. 1 § 7 and I.R.C.P. 38(a).
In the final analysis, the most persuasive argument is that Rule 13(a) would be unconstitutional “if it compelled a party either to waive his right to a jury by pleading the counterclaim or waive the claim by not pleading it....” Hightower,
III.
The Bank also claims that a writ of mandate was an improper vehicle to bring this case before the Court, since mandamus is inappropriate when judicial discretion is involved and should only be used when the party seeking the writ has a “clear legal right” to have the petitioned act performed. Felton v. Prather,
The alternative writ is made permanent insofar as it requires the district judge to vacate his order striking the demand for jury trial, and the case is remanded for further proceedings consistent herewith. Costs to Petitioners, no attorney fees awarded.
Notes
. Idaho Rule 42(b) also provides the statutory method for separating trials when there is a risk of prejudice to a party:
Separate trials. — The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of
any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Constitutions, statutes or rules of the court. (Emphasis added).
. This court in its earliest cases ruled that a party in an equity action is entitled to a jury trial on legal counterclaims or cross-claims. Robertson v. Moore,
Concurrence Opinion
specially concurring:
I concur in the result reached in the opinion of Justice Huntley. This special concurrence is for the purpose of demonstrating that a correct reading of prior Idaho cases harmonizes them with the granting of a jury trial on the legal claims of Steed. I also wish to clarify how I believe this ease should proceed procedurally after remand.
IDAHO CASES SUPPORT JURY TRIAL FOR COMPULSORY LEGAL COUNTERCLAIM TO FORECLOSURE ACTION
Art. 1, § 7 of the Idaho constitution was interpreted early in the history of this state to guarantee a jury trial to a mortgagor asserting a compulsory legal claim against a mortgagee who then brought a foreclosure action. In Stevens v. Home Savings and Loan Assn.,
The code of civil procedure adopted by the Idaho territorial legislature in 1881 contained the following provisions:
Sec. 237. The answer of the defendant shall contain:
2. A statement of any new matter constituting a defense or counter claim.
Sec. 238. The counter claim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the following causes of action:
1. A cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action;
*252 Sec. 239. If the defendant omit to set up a counter claim in the cases mentioned in the first subdivision of the last section, neither he nor his assignee can afterwards maintain an action against the plaintiff therefor.
C.C.P.1881, §§ 287, 238, and 239.
These provisions became part of the laws of this state at the time of statehood and continued to be part of our code until 1975, when they were repealed because they were in conflict with the Idaho Rules of Civil Procedure. R.S., R.C., & C.L. §§ 4183, 4184, and 4185; C.S., §§ 6694, 6695, and 6696; I.C. §§ 5-612, 5-613, and 5-614; 1975 Idaho Sess.Laws, eh. 242, § 1. Compulsory counterclaims are now^ governed by I.R.C.P. 13(a).
This Court stated shortly after Stevens, that art. 1, § 7 of our constitution simply secures the right to jury trial “as it existed at the date of the adoption of the constitution.” Christensen v. Hollingsworth,
Cases decided shortly following Stevens echoed this basic principle. In Robertson v. Moore,
Later cases decided by this Court on this issue have failed to distinguish compulsory counterclaims from permissive counterclaims. Dover Lumber Co. v. Case,
The trial court ruled that Steed’s claims were compulsory counterclaims. Therefore, Steed is entitled to a jury trial on any legal issues raised by Steed in his counterclaims.
JURY TRIAL SHOULD PRECEDE JUDGMENT IN FORECLOSURE ACTION
On remand the trial court may be concerned about how to proceed on the issues that are to be tried to a jury in relation to the issues to be tried to the court. The Iowa Supreme Court has wrestled with this question and has concluded that the trial court should defer entry of judgment in the foreclosure proceedings until after determination of the counterclaim. Hedinger v. Herweh,
Dissenting Opinion
dissenting:
I dissent for the following reasons: (1) the issuance of this particular writ is premature because the trial court, contrary to the majority’s statement, has not finally determined whether the petitioners will receive a jury trial on the issues raised in their counterclaim; (2) even if the trial court had denied the petitioners a jury trial on the issues raised in their counterclaim, such action would not be erroneous under the long established and consistent precedent of this Court, dating from the inception of the Idaho Constitution; (3) even if the trial court had entered an erroneous order, the petitioners have an adequate remedy at law by way of appeal; therefore this extraordinary writ of mandamus should not have issued. For these reasons, I dissent.
I
The issuance of a writ of mandate to the trial court in this case is premature. Contrary to the statement in the majority opinion, Judge Young has not yet denied the petitioners a jury trial on the issues raised in their counterclaim. Admittedly, in his order dated July 30,1987, he acknowledged the longstanding rule, established in innumerable decisions of this Court, that once equity obtains jurisdiction of a dispute the court will proceed in equity to a settlement of all aspects of the dispute between the parties. Nevertheless, due to petitioners’ urging, Judge Young, in the final sentence of his order, stated:
“IT IS FURTHER ORDERED that the court will reserve judgment to determine whether any legal issues remain after the court trial of the foreclosure action that will require a jury trial.”
The district court never proceeded further with the case because this Court issued its alternative writ. Thus, we do not yet know whether the trial court would have granted petitioners a jury trial on the issues raised in their counterclaim.
Starting with our earliest cases it has been recognized (1) that this Court will not anticipate that a trial court will commit error or exceed its jurisdiction and (2) that a writ will not issue to correct anticipated errors. In re Miller,
II
Even assuming that the district judge had entered a final order holding that the petitioners were not entitled to a jury trial on the legal issues raised in their counterclaim, there would still be no grounds for issuance of the writ in this case. In entering such an order the judge would only have been following a long line of Idaho precedent, which it was his duty to follow. Numerous prior decisions of this Court have clearly held that a foreclosure action is an equitable action and that, “[Ejquity having obtained jurisdiction of the subject matter of a dispute, will retain it for the settlement of all controversies between the parties with respect thereto_” Boesiger v. Freer,
Ill
In Kolp v. Board of Trustees of Butte County Joint School Dist. No. 111,
The law in this regard is well summarized in Gropp v. Huyette,
“It is elementary that an appellate court may not in this summary manner, by a resort to the extraordinary remedy of prohibition, interfere with inferior courts who are regularly exercising the judicial power reposed in them,.... The power of courts to hear and determine controversies properly before them implies also the right to decide all questions growing out of the same, either right or wrong, and appellate courts are created for the purpose of reviewing such actions after the trial court has heard and determined the controversy. Appellate courts cannot anticipate that error will be committed, or that a trial court will exceed its jurisdiction, and thereupon take jurisdiction before that court has heard and determined a matter which it has jurisdiction to hear and determine, and where it appears that the act sought to be prohibited may speedily be reviewed in the supreme court by appeal from the order of the inferior tribunal, or if an appeal will not lie, then upon a writ of error or certiora-ri, the writ of prohibition will not issue.” (Emphasis added.)
In the instant case, both the order at issue and any other actions taken would be appealable once there was a final judgment. In following Idaho precedent Judge Young did not exceed his jurisdiction, abuse his discretion, or commit any error. But even if he had erred, an adequate remedy at law in the form of a right to appeal was available. Accordingly, the writ was improvidently issued.
IV
The majority opinion does not challenge the unwavering line of decisions of this Court, rendered since the Idaho Constitution was adopted, in which this Court repeatedly held that “Article 1, section 7 of the Idaho constitution, guaranteeing the right to trial by jury, does not refer to equitable actions.” Morton v. Morton Realty Co.,
In an equally long line of cases, this Court has held that once equity has obtained jurisdiction of a dispute, equity will proceed, without a jury, to settle all controversies between the parties with respect to the initial dispute. As early as 1898, in Christensen v. Hollingsworth,
“A court of equity, having obtained jurisdiction of a cause for any purpose, may retain it for all purposes, and proceed to a determination of all of the matters in issue.”
Then, after quoting the above language from the Burke case, the Court in Johnson v. Niichels,
“We conclude, therefore, that appellants’ contention in this respect is without merit, and that this was primarily an equity action and appellants were not entitled to a jury trial upon counterclaims of a legal nature.”
Specifically, in the context of a proceeding in equity to foreclose a mortgage, this Court in Dover Lumber Co. v. Case,
“The next question presented is whether the court erred in denying a trial by jury of Case’s counterclaim [for damages for breach of contract]. It is said in 24 Cyc., pp. 126, 127: ‘The fact that defendant sets up a legal defense to an equitable cause of action does not change the character of the proceedings or entitle him to demand a jury trial. ...In the absence of a statute a defendant who pleads a counterclaim in an equitable action is not entitled to a jury trial of the issues arising thereon, notwithstanding the cross-demand constitutes an independent cause of action upon which a separate action might have been brought and a jury trial demanded.’ ”31 Idaho at 284 ,170 P. at 110 (emphasis added).
The rule announced in the Christensen, Burke, and Dover Lumber Co. cases has been followed consistently by this Court since the first decision on that issue in 1898.
The most recent recognition of the principle that once equity has obtained jurisdiction of a dispute, equity will proceed, without a jury, to settle all the controversies between the parties with respect to the initial dispute, came earlier this year in Nash v. Overholser,
With one stroke of the pen, contained in a remote footnote on the last page of its opinion, the majority overrules this ninety-year-old line of Idaho cases which held that once equity has obtained jurisdiction of a dispute, equity will proceed, without a jury, to settle all of the controversies between the parties with respect to the initial dispute. Two explanations are given for the majority’s action.
The first is that “[cjonstitutional provisions should be construed so as to give them practical affect according to the intention of the framers. (Citing cases.)” Ante at 249,
“It is the settled doctrine in a number of states having constitutional provisions similar to those above cited [including Art. 1, § 7, of the Idaho Constitution, “the right of trial by jury”] that those provisions must be read in the light of the law existing at the time of the adoption of the constitution.”
Again in Portneuf Irrigating Co., Ltd. v. Budge,
“The constitutional guaranty of the right to trial by jury is clearly a guaranty of the right that existed at the time of the adoption of the constitution; that right was the common-law right.”
Recently, in Rudd v. Rudd,
“The Idaho Constitution guarantees the right to a jury trial in cases arising at common law. See Idaho Const, art. 1, § 7.
“This provision's 'function is to preserve the right [to a jury trial] as it existed at the date of the adoption of the Constitution.’ Anderson v. Whipple,71 Idaho 112 ,227 P.2d 351 (1951). Historically, the right to trial by jury existed only in cases at common law, not in cases triable in a court of equity. Thus, by preserving the right as it existed, this constitutional provision merely preserves the right to a trial by jury in cases at common law. ‘Th[is provision was] not intended to and do[es] not extend the right of trial by jury to suits in equity.’ Anderson v. Whipple, supra.”105 Idaho at 115-116 ,666 P.2d at 642-643 (bracketed material in original, emphasis added).
The common law right to a jury trial in existence at the time that Article 1, § 7, of the Idaho Constitution was adopted, did not permit a jury trial on a legal counterclaim filed in an equitable action for the fore
The second justification made in the majority opinion is Federal Rule of Civil Procedure 13(a) and the decision of the United States Supreme Court in Beacon Theaters, Inc. v. Westover,
The United States Supreme Court has never held that the right to jury trial in the seventh amendment of the United States Constitution is binding upon the states through the fourteenth amendment. Rudd v. Rudd,
Thus, our decision and analysis in Rudd v. Rudd, supra, applies with equal force to the instant action. As has been established above, a foreclosure action is an action in equity. “Thus, the right to a jury trial does not exist ... [and] [s]ince no right existed, [petitioners were] not denied any constitutional rights under Article 1, § 7, of the Idaho Constitution.” Rudd v. Rudd,
In Johnson v. Niichels,
“ ‘A court of equity, having obtained jurisdiction of a cause for any purpose, may retain it for all purposes, and proceed to a determination of all of the matters in issue.’
“We conclude, therefore, that appellants’ contention in this respect is without merit, and that this was primarily an equity action and appellants were not entitled to a jury trial upon counterclaims of a legal nature.”
Thus, while the majority correctly states the rule to be that Article 1, § 7, the constitutional right to a jury trial provision, “should be construed so as to give [it] practical effect according to the intention of the framers,” the majority then makes no analysis of the intention of the framers of the Idaho Constitution. The majority does not mention the fact that this Court, on numerous prior occasions, has made that analysis and concluded that the framers intended that once “[a] court of equity, [has] obtained jurisdiction of a cause for any purpose, [the court] may retain it for all purposes, and proceed to a determination of all of the matters in issue.” Burke Land & Livestock Co. v. Wells, Fargo & Co., supra at 56. Accord Anderson v. Whipple,
Finally, the majority opinion laments that “judges and legislators in the United States in general, and in Idaho in particular, have evidenced an increasing tendency to arrogate power unto themselves by constricting and usurping the jury system.” Ante at 248,
In sum, the petition for writ of mandamus should never have been entertained because: (1) the petitioner’s claim is premature since the trial court has not made a final decision regarding whether it will allow the petitioners a jury trial on their legal counterclaims; (2) even assuming the
Accordingly, the petition for writ of mandamus should be dismissed.
. In addition to the above quoted cases, the rule has been followed in the following cases: Brady v. Yost,
. The Court in the Dover Lumber Co. case recognized and overruled the dicta in Robertson v. Moore,
“In Johnson Service Co. v. Kruse,121 Minn. 28 , Ann.Cas. 1914C, 850,140 N.W. 118 , the law as above quoted was followed, and there is appended to that case an exhaustive note showing it to be supported by the great weight of authority. By an expression, which was obiter dictum, in Robertson v. Moore,10 Ida. 115 ,77 P. 218 , and again in Sandstrom v. Smith,12 Ida. 446 ,86 P. 416 , this court seems to have announced a contrary doctrine, and these cases, so far as they conflict with the rule above quoted, are hereby overruled."31 Idaho at 284 ,170 P. at 110 .
. Stevens v. Home Savings & Loan Ass’n,