Gillespie v. Hynes

still has application cases like that at bar.

In the light authorities, the record and aforesaid we conclude that defendant was not unavoidably pre- vented from motion filing trial, for new timely the failure do so resulted in failure of jurisdic- tion to entertain defendant’s motion for trial. new Counsel for defendant cited has no authority which would support other Therefore, conclusion. the trial court overruling denying

defendant’s motion for be and hereby new should is affirmed. All defendant, costs are taxed to Patrick J. Stanosheck.

Affirmed. J., on briefs. participating Messmore, Clarence Gillespie, appellee, Hynes, v. Michael Impleaded Hynes appellant, Henrietta et with appellees.

al., 2d 457 N. W.

Filed March No. 34503. n & McCarthy appellant. for Kneifl, appellee. Graham, Learner & J., C. Heard before Messmore, Simmons, Carter, JJ. Wenke, Yeager, Chappell, Boslaugh, and J. Carter, plaintiff brought foreclose a me- action to

The the 8 feet of Lot on Lot 19 and east chanic’s lien City, Joy an addition South Sioux Place, Block trial, The court found Nebraska, the amount $745. personal judgment that no lien existed and entered a Hynes against the defendants Michael and Henrietta Hynes interest and costs. The defendant with $848.05 Hynes' appealed. Michael plaintiff engaged

The evidence shows that was plumbing heating Hynes moving and 'the business. was Hynes a house onto the real estate involved in- here. plaintiff quired heating plumb- the cost of about and ing. price agreed upon. $1,250 was Plaintiff during May first commenced the work the week 1953. n Hynes 15, 1953, November Michael On and Henrietta property Raymond entered into a contract to sell the and Monica Bradish. ,A. R. Because of the re- work maining property pro- to be done on the the contract completed vided: “All and material work shall be and dwelling premises by furnished in the house on said party. Party part first of second to furnish water pipes, complete, and water heater furnace and install expense.” During negotia- (cid:127)the same at their own the Hynes property discussed tions for sale agree- plaintiff resulted and this matter with except complete plaintiff work, ment that would his agreed the terms of do that which Bradish purchase, The evidence for the sum contract of $700. plumbing heating work and clear that all plaintiff Hynes agreement within between completed No other work in December 1953. plaintiff plumbing performed by under the Hynes heating extend that would contract with April filing beyond lien time for a mechanic’s August 25, 1954. Plaintiff a mechanic’s lien on filed re- months as The claim of lien was not filed within 4 consequently quired by 52-103, section R. R. S. n plaintiff properly en- held had no trial court against property. forceable lien Hynes court, the trial The defendant contends holding lien, was after had no enforceable personal against authority judgment to enter a without Hynes principle upon relies the announced in him. Reynolds v. Warner, N. W. 97 A. the court L. R. which states: “When trial the to determined that interveners were not entitled equitable power the to de- relief, court was without legal the the termine action without intervention a jury. general that, a a court in the where powers acquires jurisdiction exercise of any purpose, its jurisdiction pur- its will continue all poses, (Citing try cases.) and all issues. it will But granted, equitable where there is no a relief court of -equity generally jurisdiction will decline to enter a legal money on a cause of action. This is especially operate true where such a course would deprive right party a of his constitutional to a trial by jury. by jury trial The constitutional to a allegation equitable cannot be an of an defeated (Citing which does not exist. cause action author- equitable ities.) The interveners were not entitled to parties their in this not case, relief did waive question upon amount, to a they any, if a truth, due interveners. demanded properly try these trial, and the court refused to jury, issues a but dismissed interveners’ without petition prejudice an action at without law.”

In Massman Construction v. Nebraska Workmen’s Co. Compensation 639, this Court, 141 Neb. 2d 3 N. W. plaintiff having prose court said: “The instituted and equitable cuted this case in an the district court as ac complete hearing tion, after and, as such had strictly thereon, now seeks in, which there a common-law relief equita in the exercise its powers may grant, originally pre ble if which, original sented court, as a case for relief, such as a equity, jurisdiction court of would have no enter tain. It would seem within the an reasons the rule supreme appellate nounced York, court of New opinion follows: ‘The court, in Mann v. Fair (2 Keyes, seq.), party brings child, 106, 111 et that if equitable now, even action, when the same court systems equity, party administers both of law and equitable upon must maintain his action grounds, though prove may good fail, even he ” cause of action at law on trial.’ foregoing appear general cases state rule in recognized authority actions. A text states general rule to be: “The rule considered in the preceding equitable jurisdiction that, sections where the brought a proper court is once into action in a case, parties court will retain subject complete justice matter in order to do to all concerned, even in some instances to the extent of en- forcing purely legal rights, applies general a as rule only original when the court retains the case in order grant equitable to some substantial relief. Where the equitable bill ground on its face jurisdic- discloses no of granted tion, no relief whatever can be where the courts and, procedure distinct, are or the in law entitling complainant case even states a where bill proof equitable if the fails to establish relief, respect court is of in that with- averments the bill proceed jurisdiction further and determine out rights cognizable properly are a court of law. equitable rights must be both averred and words, other rights proved purely legal before will determined § Equity, p. equity.” S., 73, 30 J. a court of C. general Equity, § 19 Am. Jur., The rule is stated p. permits 132, as “The rule follows: which chancery jurisdiction litigation finally retain dispose application thereof is its limited in to cases in pursuant has relief been administered prayer jurisdiction bill or which rightfully the court has been invoked. If facts which jurisdiction are on relied to sustain fail of estab- may pur- lishment, the court not retain the case for the pose administering incidental relief. said equitable right proved must be both averred and prerequisite adjudication to the determination of of a purely legal right. prevailing is that view where may has not established, been the court damages except award or enter decree for costs. argued, If otherwise, litigant, by has been pretended might deprive claim relief, his opponent advantages incident to an action at law— example by jury.” constitutional of trial jurisdictions from supporting Cases other prin ciple legion. are Gogebic Some of them are Auto Co., Gogebic County Inc. v. Board of Road Commissioners, 292 Gregory 898; Mich. N. 290 W. v. Merchants App. State Bank, Tenn. S. W. 2d 465; Wasatch Refining Oil Wade, Co. v. Utah 50, 63 P. 2d 1070; Mfg. Kelley, Carlsbad 65; v.Co. 84 W. Va. 190, 100 S. E. Chicago, Ry. R. I. & P. Highway Co. State Com mission, Oregon 322 Mo. 17 S. 2d 535; W. Growers’ Coop. Assn. Riddle, 116 Or. 562, 241 P. 1011; Illinois App. E. 2d 596, 65 N. 327 Ill. Miller, v.

Minerals Co. legal divergence greater appears to be There right court to question authority on fore- judgment lien personal mechanic’s grant in a right equitable established. We no closure where provides lien statute point mechanic’s out having mechanic’s liens. One the holders benefits Consequently rights one it. under claim no can no lien it is to establish lien and fails mechanic’s claims a who position lien statute if the mechanic’s than in no better not exist. did Reynolds v. announced to the rule adhere

We support cited in and the authorities Warner, deprive contrary operate holding to the would it. A by jury. party a trial of his constitutional personal that a contends may lien claimant be rendered mechanic’s favor of a alleged although The fol- establish his lien. he fails to support foregoing lowing rule: are cited in cases Spelts Co., Lumber 166 Neb. 90 N. Patterson v. W. Maloney, 677;W. 283; 2d McHale v. 67 Neb. 93 N. Maloney Co., v. Johnson-McLean 72 Neb. 100 N. Koutsky-Brennan-Vana 423; Co., and Gibson v. W. 326, 9 N. W. 2d 298. authority proposi- are The four cases cited for the plain- foreclosure tion that on the of mechanic’s lien may personal judgment against party tiff take a personally for the debt. In each liable of those cases granted. They relief was are not inconsistent the rule that where a court in the with exercise of its acquires jurisdiction equity powers any purpose its purposes, jurisdiction continue all and it will will try issues. all jurisdiction in this

There are cases which are con- holding Reynolds trary supra. v. Warner, Among them are Parsons Construction v.Co. Gifford, 508; 617, 262 N. W. Robinson 129 Neb. v. Dawson County Co., Irr. 142 Neb. N. 2d 179; 8 W. Gibson Spelts supra; Koutsky-Brennan-Vana Patterson Co., holdings disapprove supra. Co., Lumber We import, con- of similar cases, and others these general will rule that flict with legal grant relief no where be retained to established. relief is court is that the district call attention to fact We legal having general jurisdiction both a court of equitable powers. right failure to establish

aWhile right may equitable the dis- of relief terminate theory that all issues on the trict court to determine equity powers con- in of its will the court the exercise purposes, it the court of its for all does divest tinue jurisdiction Consequently, subject matter. present trial the facts of the case that the hold under having plaintiff any court, found that was not entitled personal equitable relief, not authorized to enter a was right judgment against Hynes defendant as a in- equitable jurisdiction. cidental to the exercise its of duty think it of the trial court under such We was jury circumstances, trial, the absence of waiver of a phase that of the case for trial as to hold other law action. Hynes

It is contended the defendant that waived a jury present certainly trial in the case. There was no express of a trial. waiver The case was tried as equity proceeding and submitted to the court on that At the evidence, basis. close of the counsel for Hynes following objection: made the “The defendant Hynes objects entry any judgment against of prepare him and asks the Court for time in which to entry judgment.” ruling No is shown to this opportunity objection. There was no afforded the de- after relief fendant, denied, was to demand except jury.trial in a motion for a trial, new n Hynes’ the trial court fact, was done. overruled plaintiff’s close motion to dismiss at the evidence, an that the court would hold indication established, had been which would relief any question by jury. of a do not eliminate trial We present a hold- sufficient to sustain deem record ing that a waived. part judgment denying a fore- affirm that

We closure of the claim a mechanic’s lien. reverse We part judgment granting personal judgment plaintiff against Hynes Michael defendants Hynes. personal liability Henrietta The issue re- try manded to the district with directions to such as a issue law action. part

Affirmed part, reversed AND REMANDED WITH DIRECTIONS. C. J., dissenting.

Simmons, The mistake court in this case was that repeatedly it rules of followed the law stated judicial precedents of this That, state. so holds the court, prejudicial error. holds in this

The court case a mechanic’s lien for equity; is, start, foreclosure at its triable in that if at the trial the establishes a to a lien for cent or more remains an action and the right, equity, court has the to determine all issues presented including standing case, in the issues which plain- be at alone would triable law. However, if the fails a lien tiff to establish for 1 or cent more, or alleged court, reason, holds the lien to in- be during valid, whether at or its close, at then equity, time the case ceases to be triable in and stop hearing court on its own motion must the case in equity proceed to hear the law issue as an action jury waived, at law if with not waived, then to a jury. applicable course, new must be

Of to actions generally. party The common one is where a seeks injunction recovery damages. an and a The action is initially equity. as action heard The trial court may hear all evidence as to the

57 injunction damages. to an and to If at the close of the evidence the court determines by injunction granted, relief should not be then it can- properly damages, already determine' the issue of retry tried. must then cause and submit question jury, ato unless defendant waives in which event the court it in an action at determines although law, the court had heard the evidence as a equity subject cause in rules. To reach that directly disapproves conclusion the court overrules and disapproves recent decisions this court and several generally. others I shall refer to those decisions later. This court has held: “The essential character of the remedy cause of action and the or relief it seeks, as allegations petition, shown determine particular equity, whether a action is one at law or in pleader unaffected pleader the conclusions of the or what the prayer Long Mag calls it, or the for relief.” nolia Petroleum Co., 166 Neb. 410, 89 W. 2d N. excluding “prayer contrary for relief” is

several of our earlier decisions. In Keens v. Gaslin, 24 310, 797, Neb. 38 N. W. we held: “In cases of doubt, pleader equity, where has stated a cause of action in and also one at law, in such a manner as to leave pursue, uncertain may which one he intended to resort prayer had to the for relief to determine the character of the action.”

Other decisions mentioned later herein include the prayer proper relief as consideration. In fact prayer fully quoted for relief was and considered County in Robinson v. Dawson Co., Irr. Neb. directly W. 2d one of the cases dis N. ; approved opinion in the court’s here As late as Johnson v. Radio Station WOW, on re- hearing, supple- 2d 666, N. W. in a opinion mental, held: “The character of a cause of by allegations is determined action of fact contained petition, by in the unaffected the conclusions of the 58 * * * general petition prayer

pleader. asks for The equitable so restrictive not, therefore, and is relief holding preclude fraud exists.” that constructive advising trial above-quoted is rule a clear The “particular action” determine court how to whether long-established equity. is in is one at law or opinion often-repeated its source In the above rule. Heckendorn, Mills Neb. is been in 135 shown have its to have source shown 294, 281 N. W. 49. There p. § for the Actions, 54, in 1154. S., been J. Save C prayer it for relief” is in accord with clause “or the appear beginning as later in decisions from the will our this dissent. quoted text from the rule taken was

The was opinion, rehearing, approval in our on with full supra. rule from WOW, Johnson v. Radio Station supra, quoted ap- Heckendorn, Mills v. proval with full Mills, in Brchan v. The Crete 155 Neb. WOW, 2d Johnson v. Radio N. W. 333. Station by Walker, this court in Benson followed 59 N. 2d for the rule “The W. that: character of a cause of action is determined the alle- gations petition, of fact contained unaffected pleader.” again the conclusions of the It was followed Wald, Svoboda v. De 159 Neb. 2d 68 N. W. recognize may that it be said that the rule above may quoted beginning be at the trial, followed opinion, may longer but, as a result of this no be begins. followed For under the decision after may made, during of the court now a cause start as one triable equity, if but the trial the evidence discloses there no cause or the fact, during the trial or at its concludes close that granted, point relief is not to be stop the court at that must proceedings, its on its motion, own advise the legal only parties trial, issues remain for and that legal trial must waived, to a be or the 1 n jury. must tried to a issues

59 proceed a decree on The court must then to render try proceed issue and in the same case to though it issue as and that even law a law action properly involves a resubmission of all the evidence properly proceeding received as an when the cause was equity. action in To reach that result the court overrules long precedents, by direct line of established some many reference. The court reference, and others without court, its of this rests conclusion on two decisions namely Reynolds 304, N. W. Warner, v. 128 Neb. 462, v. 97 A. L. R. and Massman Co. Construction Compensation Court, Nebraska Workmen’s 141 Neb. 2d I shall those cases later 3 N. W. discuss cases, herein. discussion of the the court dis- Without approves Gifford, Parsons v. Construction Co. 129 Neb. County 508; 262 N. Irr. W. Robinson Dawson supra; Koutsky-Brennan-Vana Co., Co., Gibson v. Spelts Neb. 326, 298; 9 N. W. Lum- 2d and Patterson Co., ber 283; 166 Neb. N. 2d “and others of 90 W. import, general similar conflict which with the rule that equity jurisdiction grant legal will not be retained relief no where relief is established.” Later herein I will discuss those cases and “others of import” apparently similar which are too numerous for the court to mention. judicial mowing machine thus cuts a wide swath

through precedents cutting the established of this court way, weakening, down those stand in its if not effectively destroying, many others. pre-

Trial courts have followed these now discarded cedents. We will other cases where now have we will compelled “prejudicial to find be error” was committed by requiring may reversal, the trial court and where it truly only said that the error of the trial court was long-recognized that precedents. followed our established interesting questions appeal can Some arise on as a Suppose a result of decision. trial court this reaches de court on made such as was conclusion, Spelts that a Co., Lumber in Patterson v. novo then $6.52, valid the sum mechanic’s lien was judgment proceeds the amount of to determine in addition to recover lienholder entitled foreclosing a decree in thereto and renders due, for the balance $6.52, and awards lien understanding my protected It is the lien. adopted, decision opinion that this here of the court holding in the case of Patterson not disturb the does the full Spelts has Co., Lumber person- a foreclosure and a decree of to render both circumstances. under those al appeal supposing defendant contends

But on the only awarding for foreclosure erred in the trial court awarding a lien for the balance in not and $6.52 items plaintiff cross-appeals, proven, suppose con- and tending' for the amount found due that he is not liable judgment against circumstances him. Under those retry issue as the lien and its amount to we would equity. as in de novo

Supposing valid lien determined that there was no trial not decision, then under this for amount required having remand the waived, been be to we would plain- liability cause as to the of the defendant to as a action. tiff for retrial law supposing defend But the trial court had offered the waived, ant a trial on the issue and it had been law such, and then had determined the law action as tried to jury. appeal the court without a would then on We pre here as issue review-the-record ¡suhíed- law on .the (See infallibility my Capital rule-. dissent Bridge County Saunders, 164 N. Co. Neb. 18.) W. 2d appeal might it that on an is conceivable here we

So upon the evidence de be called to review novo as to one might and reach fact conclusion thereon. issue We . be; required to. review same evidence, in thereafter compelled' part be at rule and least, under law opposite diametrically conclusion. reach necessity findings under law rule would finding equity rule and the under the would control yield. required then to that ex- The law would supplant judicial, statutory approved, de novo tent rule. questions come course, us,

Of when those like to we decide docket will them. Our is current and a few more added to it cases cause extreme burdens to us. will upon trying But what of cast courts of the burden piecemeal causes and twice where heretofore one trial been has held sufficient? I here refer to the often stated established rule that: “Where jurisdiction any purpose has obtained of a cause for proceed it retain it all, will final to a determina- adjudicate of the case, tion all matters issue, unnecessary litigation.” avoid thus Dennis v. Omaha Bank, Nat. 153 Neb. 46 N. 2d A. W. L. R. 2d That 674. rule was followed in Tomek, Fiala v. 81 N. 2d I shall W. refer to other decisions following herein later the above rule. The court now limits rule to a to retain and re- part fuses follow that which states that it will re- (the cause) purposes proceed tain all ato adjudicate final determination of the case, all matters litigation. unnecessary issue, and thus avoid That vital restriction of the rule is inherent in the court’s present may decision. The now retain' only jurisdictional purposes. cause many That like others stated later herein is in import” class -the of “others of similar which are here disapproved.

Heretofore often we have said that we should avoid creating pitfalls litigation in the course of and that should litigation, seek to reduce the cost of ex- pedite simplify (as by pretrial, trials, and issues etc.), all the end justice. to of better administration of questions, do all we need these, and like

To avoid precedents rules and here to our established follow indirectly directly dis- overruled, are now approved, or modified. dealing subject this decisions of this court with

The it matter are so interlocked and impossible interwoven separately and at times to refer to them repetition. necessary without Yet I deem order impact estab- show full decision on the lished of this state. law important

It becomes in the case issues, state the fully decides, the court more than now a bit is done opinion. petition seeking the court’s Plaintiff filed his praying per- foreclose mechanic’s lien and for a judgment. copy sonal He attached a as of the lien alleged filed, that it had been filed within 4 months per- after the last item of labor and material had been formed, furnished, and delivered.

The mechanic’s lien recited that the last item fur- July alleged nished on was He that the me- August petition chanic’s lien filed 1954. His equity. stated a cause of action in denying any agree- defendants Bradish answered, plaintiff, denying any ment with the any contract at denying furnishing time, and of labor and materials “subsequent (sic).” They November further alleged against if cause of action them ever subsequent accrued it accrued within 4 months to No- accordingly vember 1953, and was barred by reply statute of gen- limitations. Plaintiff filed a eral denial to this answer. Hynes ground

Defendants on the demurred that no cause of action stated as to them. The trial court overruled the Hynes demurrer. Defendants then an- pleaded swered and pro- contract recited in $700 posed opinion. They pleaded payment, further full pleaded so they far concerned, were and also that the required lien was not filed within the time statute. parties pleaded as So both limitations a statute of by reply defense to the lien. filed a mechanic’s Plaintiff general denial to this answer. replied

Defendants Bradish then to the defendants Hynes’ alleged among things upon answer and other facts they of the statute of limi- claimed benefit tations.

The matter went to trial on so The the issues made. plead- trial court held that “under the evidence and ings” plaintiff not entitled to lien. It rendered against judgment Hynes. the defendants Hynes contending The defendants then filed motion time that the court had no first money against enter a they them and that were entitled to a trial.

We have held: “The benefit of the limita- statute of personal personal privilege, tions is may like and, other * *' * pleaded. be waived and will be unless The pleaded by statute of limitations must be or demurrer. either answer * * * petition When a shows its on face that the action therein stated is barred the statute general of limitations demurrer will raise defense.” Vielehr Malone, 63 N. W. 2d 497.

The affirmative defense of the statute of limitations was raised here answer and became an issue to be tried as to the facts. The decree of the court shows that it was out. tried pleadings

I call attention to finding these and the They fact for this reason: show that the fact of becoming validity statute a bar of the lien did appear until the cause was tried. dealing areWe then with case where had jurisdiction on the issues as made and where a trial required facts sufficiency determine pleaded. of the defenses develops holds, when in the trial that granted, relief such cannot that the court plain- question of the

then must submit the jury. money ato to recover a tiff opinion contrary in the court’s rule stated It is equity powers a court in exercise its “that, where jurisdiction any purpose, acquires its for try purposes, all issues.” all and will for will continue of this modification I the vital discussed above by the court. made now length opinion, quotes from at court sustain

The to its by language there the our The used two of decisions. being the must issue determined. court be related Reynolds supra. I quotes Warner, v. from The point out herein, refer this decision later and shall authority sustain that the relied on to decision that applicable equity rule that is not an “ancient” on rests in pro- the reformed Nebraska, such where states, the subject point out now that the is in effect. cedure litigation attorney’s that lien; matter of that was an pro- right; that a is common law the statutes such a provided remedy 52-114, is section no such as vide au- R. a mechanic’s lienholder is R. S. wherein petition proceed “by equity”; that a in and thorized at only trial re- time that action went to the issue maining in it of how if amount was that much attorney being by sole could be recovered —that jury issue, a and that a was there demanded. and law quotes from Massman Co. The court also Construction Compensation supra. Court, Workmen’s Nebraska plaintiff pleaded case the a cause action that in injunction. prayer request a for an its included prohibition. The trial court for a writ of denied the writ appealed. prohibition. Plaintiff The We affirmed. holding plaintiff plead that a cannot effect of By equitable remedy. and then a cause recover law plaintiff pleaded instant case contrast cause prayed and relief. Defendants injected separate Hynes the issue into the case plaintiff Hynes contract between and defendants pleaded limitations the statute of both Bradish and develop payment the effect later full. I shall injection a defendant. issue into the case of a law Company quote Massman Construction from the The authority entirely upon the case relied rests on here Lodge, Royal Y. Supreme 198 N. Arcanum, Loeb sought equit- 180, 91 N. 547. In that case E. (cid:127) presented issues relief-. The court held able dis- of the court on the law side could not tried prove cause failure missed action for ' judges being alleged. divided, four court was insisting judges the cause be and three dismissal opinion jury. to that extent tried to So contrary Appeals to the decision New York Court of instant case. But is not of the court in the important distinction. important in the York case is that New

The distinction plaintiff pleaded equitable of action an cause only remedy. regard sought the New a law In that and then supports the Massman Construction Com- York decision pany case But of the is the case. neither cases have here. we Realty Merry R. E.

I Co. v. & Hollis now cite Shamokin In that N. Y. 130 N. E. 306. case Co., brought “The “the follows: has stated case” as mortgage, exchange taken in a action foreclose having part property The defendant as consideration.' brought previously rescission, for counterclaims action asking justifying by pleading and the facts rescission exchange that the be aside, be set Hollis lots damages.” together $1,500 with The trial restored damages for court denied rescission and awarded and fraud appeal the court held: On “The defendant deceit. brought. rescind before action was had elected to answer at trial full and After the amendment complete The was demanded. rescission damages for as in an not for rescission but action at law. pleadings granted inconsistent with The relief theory think, This, and the action. was error.” quoted The court to sustain its conclusion then same Royal authority Supreme Lodge, Ar- cited Loeb canum, other and cases. court then held: present system pleading equitable our “Under and ** * joined may legal complaint. causes the same * * * pleaded. Here no cause action at ever law was complaint Likewise the could been a have with framed aspect, a claim or, double rescission such for if relief inadequate, money damages were a demand found * * Upon may *. a new the defendant have full get impossible rescission owing its or back, and lots if this is changed inequitable circumstances or is may complete damages reason, then it have full and Special awarded Term for fraud and deceit mortgage part lieu thereof liquidation cancellation of the damages.” (Emphasis supplied.) of these patent It that, becomes then as in the Massman Con- Company plaintiff pleads solely struction case, where cause of he action cannot recover lawa remedy. party joins But as in the where instant case legal “equitable aspect” causes” or “with a double legal claim for relief, cause is triable given relief that the circumstances require. the case develops exactly thus the New York rule is

that for here which contend and that the Massman Con- Company important struction case is not under the is- sues here made. point quoted out later herein that when the court § Equity, p. quit S.,

from C. J. reading 73, 30 it 427, too quickly. Company The Massman Construction case, pointed entirely Supreme out, above Lodge, Royal relies on Loeb v. supra.

Arcanum, That is case cited p. Equity, § J., 144, C. note the rule in New positively “In it York that: some cases is declared that plaintiff only equitable where a seeks relief and fails equity, his to establish court will not retain the legal case to relief.” That award is not instant case. paragraph same from the Secundum which quotes, says jurisdictions, this: “In other under provisions abolishing the influence of the of the codes equity distinction between actions at law and suits in and under there but which one court one form of judgment may give action in which the all the relief party may either in law or to which show point up himself it has been held that entitled, by jury where the constitutional of trial be would unduly prejudiced by going further there is no want of power grant legal relief in an action commenced equitable only, secure relief and this is true notwith- standing the of the case facts were known to when he his commenced action for relief.” Equity, pp. § S., J. support C. 428, 429. Cited in “* * * is the thereof New York rule: where court of power has cause it has to dis- pose grant complete all at issue matters re- parties lief, and even if it is found that the are not en- may titled to relief the court retain the cause grant proper.” Among such relief as is other cases Merry Realty cited is Co. v. Shamokin & Hollis R. E. supra. Co.,

ISo submit that Company the Massman Construction having directly case us committed to the New York rule willing should to follow it in a case that is in direct accord with the rule for which I contend. This would particularly appropriate seem be in view of the fact procedure originated that our code of reformed in New York. quotes Equity, §

The court then from 30 C. J. S., p. general 427. This rule states condition to a adopted court has not heretofore and which contrary many of our decisions referred to in this I shall return to that later dissent. herein. reading quits quickly.

The court too Had it continued quote concluding would have shown the rule that 68 jurisdiction will not defeat a of

a “retention objection for a reason no and no obvious where there is jury subject waiver, of itself to the This relates trial.” support later Cited referred herein. which will quoted by cases, court the are two Nebraska of the text supra, Reynolds Warner, and Massman Construction supra. Compensation Court, Workmen’s Co. v. Nebraska au- I that the concerned submit So far Nebraska is as higher cases thority not our the text does rise than of are decisions sustain it. No other Nebraska cited to scope the of cases do sustain broad cited. two Our the rule. quote from same au the rule

The court does not every jurisdiction, citing thority in cases from almost “* * * cluding rule that: is a well settled Nebraska, jurisdiction equity obtained court of has a ground, any purpose, controversy for on will a administering jurisdiction purpose retain such complete doing justice respect entire relief and with ** Equity, p. § subject S., J. mátter, C. authority point out as this text 414. Hére more, our cites seven of decisions. Thirteen author disapproved, including now two those are cited pocket part supplement, antecedent author p. Equity, § ity, J., cites ten C. additional quote Nor this court. does decisions of authority that: “While it has the same been from jurisdiction pur will not retain for the said litigant jury, pose depriving by of his legal by jury if a trial of matters is es and that peculiarly appro relief, issue or if the more sential by judge, priate than for trial will ordi jurisdiction leaving narily as to decline those matters legal parties equity may, remedies, to their neverthe pass ordinarily less, on issues retain though jury, tried even the effect is to that extent * * litigant deprive trial, S., 30 C. J. p. Equity, § 67 Equity, § 132, quotes also from 19 Am. Jur.,

The court Reynolds p. again, cited Warner, 132. Here part the the of text. sustain latter to misleading. analyzed, be unless can Text statements, quoted from American the court sentence The first disjunctive. Jurisprudence in I leave rule the states a disjunctive is: clause. cited then the first rule out chancery permits retain the court of “The rule which jurisdiction finally dispose litigation thereof is of * * * application in its limited cases jurisdiction rightfully of the court has been invoked.” plaintiff pleaded a action case. Here cause of That is prayed equity. for relief. cause He His good by the was defeated defenses of but action proven. pleaded, when were those defenses quote but did from The court could have the same authority equity “The rule which states: is will partial incomplete Having taken decree. not enter cognizance any purpose, a

of a cause for court of ordinarily jurisdiction purposes; all de- retain will subject all which are matter of cide issues involved litigants; dispute com- between award which is relief litigation plete finally disposes so as make performance perfectly of the court’s decree safe to may compelled obey accomplish it; full those who justice parties litigant; prevent between the future * * * part controversy litigation. A should not (Emphasis supplied.) law." to a court he remitted Equity, p. Curiously enough, § Jur., (cid:127)19 Am. supra, authority Reynolds Warner, v. is cited for the emphasized clause first above. precise Koutsky- is v.

Now what in Gibson supra, Spelts Co., and in Patterson Brennan-Vana supra, disapproval Co., Lumber at which the is blanket “Ordinarily personal judgment this: directed. may lien claimant favor of mechanic’s be rendered in although alleged he establish lien.” fails to his objection major premise The court makes no to the opinions “A that: court which has ob- jurisdic- purpose tained will retain administering complete purpose relief tion for the parties respect subject with to the matter.” between the pointed out, As I have however, effect of this decision quite seriously quote modify that rule. The is to Spelts Company Lumber from the case.. is,

Is the rule stated correct rule? If it then the con- clusion of the error. the instant case is in

I call attention fact rule was same Koutsky-Brennan-Vana followed in Gibson Co., citing Spelts the same authorities as are cited Company Lumber case. case the defendant sought of a lien. foreclosure mechanic’s We affirmed a ordering discharged decree lien and af- record personal judgment against firmed a for the defendant plaintiff, holding: though “We that conclude even affirmatively pleaded the mechanic’s lien in defendant’s foreclosure, answer failed of the court err did not when accounting parties it made an the between and awarded personal against they the owners, being personally by liable for the material furnished defendant.” precise holding affirming applica- there

So was a the tion of the rule that later was stated and followed in Spelts Company Lumber case. Corpus

I next call attention to the fact that Juris and Corpus (the upon authority Juris Secundum same relies) jurisdictions the court supporting cite 30 adopted Spelts rule in the Company Lumber and Gibson jurisdictions holding cases as contra. See 57 C. p. § Liens, J. S., 329, Mechanics’ 1014. American Juris- prudence says general it is rule. See 36 Am. Jur., § p. arguing Mechanics’ I am Liens, in favor by counting jurisdictions solely. of a I do think general that before so well established a rule is over- having by adopted ruled been us twice, that the after should pay holdings a bit of attention to the of disap- opinion in other states. The authorities court’s proves I sub- reference. them benefit of direct without challenged state, of so de- rule is the law this mit the directly, years. by opinions in recent clared two Reynolds v. to fail to The court holds that follow deprive party operate of his Warner, “would right by jury.” a trial constitutional opinion majority does not define boundaries The right.” of that “constitutional jury? right trial

What the constitutional jury says: right trial “The The Constitution * * § inviolate, Art. Constitution I, shall remain of Nebraska. committed to the view

We have held: “We are merely provision extend, but this does not create right operates preserve, it trial as existed prior adoption of of 1875. In our Constitution to words, may it curtailed.” In re Guardian- other not be * * “* ship Warner, 137 Neb. 288 N. W. 39. preserve right purpose provisions these by jury trial it existed at common and under the law adopted.” statutes in force when the Constitution was Hauser, State v. 288 N. W. 518. question,

The is: Is such a case then, where right by jury of trial existed Constitution of when the adopted? 1875

I there take will be no contention that a a constitutional case. point out to a mechanic’s lien is a statutory right. procedures recovery statutory are also. Sec- gives person holding 52-104, 1943, R. R.

tion S. a a lien bring right a civil action a for the his ac- amount of the lien count and that shall continue “until such suit finally determined and satisfied.” 52-114, Section R. gives right “proceed 1943, R. S. the lienholder the * * * provision equity” authorizing pro- in etc. The ceeding in back as far stems as section 17 anof (Laws regarding passed 1858, in 1858 mechanics’ liens

act chancery.” “petition 225), phrase p. where the used proceeding of before the So this was an by adopted jury provision 1875 Con- in the trial was stitution. develop again later, call attention I will here, attorney’s lien statute which was involved

Reynolds Warner, is the main reliance which procedure opinion, statutory has no such court’s authority. important beginning

It is from to note that by jury action lim- in a civil has been a right. ited, restricted Legislature by approved February act Territorial adopted practice “Respecting pro-

13, 1857, a code ceedings in Courts Justice.” provided

It therein that: “Issues of fact shall be by parties require tried court unless one jury.” p. § 1857, c. XIY, 11, Laws 68. Here not a required. but waiver a demand for a This chapter repealed by the act 1858 to which I now p. refer. Laws 1858, Legislature (Laws

The Territorial 1858, of 1858 Tit. p. 109) provided: §§ I, “The distinction between actions at law, and the forms such of all actions and suits, existing, place, heretofore abolished; are and in their there shall be, hereafter, but one form of action, * * * shall called a civil action. There can be no feigned question put issues; but a fact, issue may by pleadings, jury, upon be tried an order stating, distinctly trial, for the plainly, ques- tion of fact only tried, to be and such order is the au- thority necessary (Emphasis supplied.) for a trial.” provided (Laws

It further §§ Tit. IX, I, Art. pp. 151) 262, 263, that: arising “Issues of fact recovery money, specific actions or of real personal property, jury, shall be tried unless a jury trial is waived, or a reference be ordered as here-

73 * * * he provided. shall All issues inafter other of fact power hy subject to order to its court, tried pro- jury, or referred tried issue or issues to be (Emphasis supplied.) in this code.” vided provision regarding in is found trial now This provision, then, This 25-1104, R. R. 1943. section S. provision that re- of the territorial law stems back to a following by the to is shown lated at law” as “actions beginning' apply history in the the act. It did not equity it does not do so now. actions and submit provision to “distinctions between The above relates Legislature repealed at actions law.” The 1867 provision: provision “That the distinc- enacted the and equity, at and suits in and tions between actions law existing, action and suits heretofore forms of all such place in their there shall be here- abolished; are shall called action, after but one form of ” p. § 1866-67, 1, action.’ Laws ‘civil Legislature repealed At the same time the Title XXIV, “chancery,” Legislature which was code. The repealed “joinder in VI, also Title actions” in the 1866 apply they code so as to make “whether be such as legal equitable, have heretofore denominated been or * * provision both, The same exists now sec- 25-701, tion joinder R. R. There is no claim here of mis- S. 1943. development

of causes of action. I cite this procedures that all of these reformed show acted were en- prior to our 1875 Constitution an in- were tegral part judicial system of our before the provision placed by jury in the . Constitution. adopts contrary the court

The rule which now is holdings Spelts Company our in the Gibson Lumber holdings contrary beginning to our cases. It from the in mechanic’s lien foreclosure cases and other cases involving try of an court to all issues n jury. contrary without the intervention of a It is repeated regarding declarations of this court

power of an court.

I now cite some of the cases. In Dohle v. Omaha Foundry Co., & Machine 15 Neb. 19 N. W. “An held: action to foreclose a mechanic’s lien essen- tially equity, party in a suit and a is not as a matter of right jury entitled to a trial therein.” repeatedly approval

That case has been cited in with subsequent Morrissey It cases. came before the court in Broomal, v. 37 Neb. 56 N. W. 383. There defend- sought grain ant to foreclose a lien on and to recover damages. cross-petition thereWe said: “The demanded equitable only. equity powers relief It invoked the of by cross-petition, the court, and the issues made the the appellant reply answer of the thereto, and the appellees entirely equitable; appellant were but also alleged by way of counter-claim in his answer that he damaged by wrongful had been $10,000 the termination * * * by appellees. of the contract the After the evidence appeared grain it by in, was that the called for the ware- sought receipts house already to be foreclosed had been disposed by appellant, of the and Ms counsel now con- impaneled tends that the court jury. should have then a position But this sitting untenable. The court was equity. in pleadings had it equitable on the before action, and it did not lose its because the only adequate evidence disclosed that the it could relief * * * personal judgment. was a The court was afford right refusing appellant (Emphasis trial.” supplied.) again

The Dohle case was cited in Sharmer v. Mc- Intosh, 61 N. W. where we held: petition “Where states a equitable cause of action for prays relief and for relief, a cannot be right demanded as a matter of for the trial of issue arising in the case.” again The Dohle case approval was cited with Yager Exchange Hastings, Bank Nat. of 52 Neb. 321, petition prayer was 211. There W. 72 N. for of sub- the court money judgment. made issues On reported in favor He referee. the matter to a mitted report confirmed The the defendant. that the action contended The case dismissed. money recovery essentially one money recovery the cause shall actions by jury. contention. We sustained tried We by jury trial or not a held: there “Whether objects the action determined exists must be from petition, and in the averments determined * * * prayer. ambiguity If the resort to the case of by jury, the one triable in its nature action is in order to because, defeated not be such accomplish will object action, becomes the main necessary issues as to existence determine (Emphasis supplied.) rights.” The reason apparent. distinction is for the again approval cited Dohle case was with Douglas County,

Woodrough 71 Neb. 98 N. W. held: “Plaintiff further contends that there 1092. We pro- because the act makes the is unconstitutional no law by jury. by that, trial It will be observed the vision for a by county the action itself, of the the to fore- terms law equity. suit tax lien is declared to be a in close the there is not was, now, never constitutional There statutory right jury equitable trial in of an action.” point “by again the out that terms of the I law it- “pro- to foreclose lien is a self” an action mechanic’s equity.” ceeding appear anyone since that time,

It does until challenged the the Dohle has case. now, pointed may out that the Dohle case and Morrissey are cited 89 A. L. R. 1391, case for the weight great authority “The that: bule by interposition defendant effect that legal a counterclaim of a action, of nature, right gives trial, to a no either of him the case generally the counterclaim.” raised or of the issue states and other from 17 The annotation cites decisions authority” “great weight England support of the quoted. rule above go Polk, Pickens v. our decision in

I next to discussing refer this case I Before 267, N. 60 W. majority opinion holding that a failure to in the right divest the “does not relief establish subject jurisdiction matter.” court of its against brought Pickens an action the above action the defendant with whom defendants. Polk was two alleged contract that the founda- Pickens had a was property. lien. Polk sold the The of a mechanic’s tion sought foreclose Pickens vested in one Leeson. title naming Leeson as lien Polk and defend- the mechanic’s had on Polk but not on Leeson within ants. Service was period. statutory judg- the action as Polk was held that We upon that he had interest in the account, ment no sought against property, the relief as either separate distinct and from the defendant was demand against the other. judgment against court rendered Polk for (Pickens’) account. subject

the amount his We held: “The * * * had matter. We court, think the action which it retained and controversy appellee between tried the ánd Milton D. adjudicated proper the account and it, Polk on right.” (Emphasis supplied.) “in the decree so far reversed as it

We awards a lien,” the mechanic’s foreclosure of dismissed the action against Leeson, and affirmed the as to Polk. point pre- to a out trial was not sented, but court to determine the in- dependent issue was affirmed. in cited1the Pickens Parsons case -'We Construction Co. n siipra. Gifford, This is one of

v. the’decisions which is opinion disapproved in the court’s and without dis-

77 ;discuss place perhaps proper cussion. This is Company Parsons case. attention Construction .call judge it the same wrote to the fact that who written supra (which principal Reynolds Warner, v. .case opinion), upon by proposed it that was relied Reynolds Warner, after v. filed less than months supra, was decided. argued Company

The Parsons case was Construction January Under the mechanics here on decision, handling opinions had here it is obvious that the supra. Reynolds It must Warner, then made in v. been have fresh in the minds of the court been judge days for it later. it, wrote was filed who appears judge obvious that who wrote two opinions, in deci- court, saw no conflict the two attorneys in Gifford, sions. The the Parsons Con- rehearing Company case, struction filed briefs Reynolds that case October months after They that the Warner, was decided. contended discussed, in the here as Parsons Construc- decided They Company case, Ne- tion erroneous. cited no braska decisions to sustain them.

Reynolds supra, has remained in our re- Warner, ports quarter century. During that time now for of a question involved, it has never been cited on the here although repeatedly, during time, have decided precise contrary issue now involved to what the court holds. now suddenly after

Now all that time it comes forth with blazing light noonday all the sun. That which clearly sees now has heretofore not been seen at all. Company

The Parsons Construction case was an action to foreclose a mechanic’s lien a subcontractor. Gif- cross-petition asking ford, defendant, filed a for dam- ages against the contractor. The action tried first on of the mechanic’s the issue lien. The trial court denied just lien, it did the instant case. foreclosure of (a later) the year tried on the case was “Thereafter” jury damages. trial. demanded a then issue of Gifford jury trial denied. A was by jury, right trial of a the denial

We affirmed quoted, citing held: “In above case as the Pickens brought equity properly suit in was case, the other issues were a mechanic’s lien. These foreclose pleaded by defendants. It is a well-settled the jurisdiction has obtained that a court of purpose any purpose retain will administering complete respect sub- relief with * * * ject-matter. subject-matter of this suit was foreclosure of a mechanic’s lien under a contract for the construction of addition to the Hotel.” Sanford opinion gave also,

The writer “another reason” but the first and initial reason is that above shown.

I next call attention to Lett Hammond, petition prayed N. 80 W. 1042. Plaintiff’s for a money judgment aon contract. The defendant moved be cause transferred to the docket on ground accounting. involved an When the jury cause came to trial demanded a trial. (after trial) refused was for the appealed, asserting right defendant. Plaintiff his to a jury strictly party trial. held: “In We law action a * * * jury right. is entitled to a trial as a matter of urged It case for defendant that there were issues in the equitable. they

which were their nature If so, purely were but incidental to the one, main which legal. sought recovery money The relief was the asserted to be due because of a breach of the contract. No prevailing relief was asked. With such plaintiffs right conditions of the issues the had a to (Emphasis supplied.) trial.” supports The distinction made in the Lett case a denial by jury aof here.

Daniels v. Mutual Benefit Life Ins. Co., 73 Neb. 257, began N. as an 102 W. action to foreclose a mort- urged question gage. next “The there held: We plain- overruling demand of that the court erred in question by jury their on tiffs in error for a trial judgment. liability deficiency The determination for a question depends the action nature of this on the inception. purely of trial at its by If incep- legal its at its if nature exist; did not interposed, might although equitable defenses tion, (Em- by jury remain.” still a trial would phasis supplied.) supports of a denial

The distinction there made by jury equitable at its case here. The instant was pleading. being by inception, made so statute our decision in I next call attention to Robinson County supra. Co., This a “cow” case Dawson Irr. one, directly if reached is there ever The conclusion was opinion. present also decision contra to the court’s This disapproved by In that discussion. court without the equitable sought injunction plaintiff an an which is case lien. Plain- as is foreclosure of a mechanic’s cause the damages sought recovery consid- which, tiff also separate prayer money apart, is a for a ered judgment. alleged right injunction. his an Plaintiff waived equitable remedy. short, he his to an In In the instant case the waived insisted his on equity, remedy but the court found was by statute. in the Robinson case the issue barred of So by way injunction relief was out case In the instant case it not out of before trial. was the at the trial demonstrated the case until evidence good. of the statute of limitations was defense case the trial court did Robinson what holds should have been done in the instant case. court damages jury judg- tried to issue of was and a plaintiff. appealed, for the ment rendered Defendants complaining held instructions. We that there was in one of them. error” “manifest damages action for

Plaintiff contended that the the verdict incidental to the cause and that * * * jury advisory only.” “therefore We require held that: “These contentions an examination procedure of the nature in the action and the followed obtaining appeal is from (Emphasis supplied.) taken.” then that the suit in- stated was one to obtain an We. junction damages. quoted prayer and to recover We petition. (The Yager Exchange tracks of Nat. Hastings, supra, appear here.) Bank thenWe held: think “We the case is one which a court of properly jurisdiction, could take once having been taken, case will be retained for the ad- judication objection of all issues. No was made to the calling jury. court’s of a The mere that the trial fact grant injunction deprive court does not such failed hearing prayer damages in- from juries jury The.verdict of the must, therefore, suffered. advisory presumption treated in character and the follows that errors the submission of the case to the judgment were considered the trial court before Prejudicial

was entered. error in the instruc- advisory tions capacity to a in called an cannot be successfully asserted. holdWe therefore that reversible present error in the instructions in the case could not be successfully assigned in view the fact that the ver- advisory only.” (Emphasis dict of the sup- plied.) Obviously patent the conclusion was so that no Although authorities are cited to “disap- sustain it. proved” opinion the effect of the court’s is to overrule this decision. go

I now to others of our decisions “of similar im- port” speci- four decisions of this court which are fically disapproved opinion. in the court’s As I view it these decisions also stand cut disapproved, down and without mention. County,

In Kuhl v. Pierce 44 Neb. 584, 62 N. W. 1066, spirit and laws constitution the court “The said: fact arise that if issue of this, this state to be an seems equitable of fact issue an action in its nature such arise a court; the issue of fact triable to the but if issue, purely legal triable to of fact is then the action (Emphasis jury.” supplied.) by our de- is illustrated distinction the cases cision in N. W. 504. Given, Larabee v. 65 Neb. representa- plaintiff brought action for false There the given tion in had note secured the sale land. He by part sought mortgage payment. for a He restraining damages negotiation an order and damages the note and cred- until were ascertained primary ited on the note. The issue was false obvious representation. The action tried to the court “with- any, jury.” out a Error, formal waiver of a if principal was waived this court. We held: “The plaintiffs contention behalf on in error petition improperly joins legal causes of action uphold relief. can not We this contention. definitely It was settled this court in Erickson v. First of Oakland, Nat. Bank Nebr., 622, injunction granted cases cited, there that an will be negotiable to restrain the sale of a note, as to cut so recoupment off defenses counter-claim and thereto. perhaps practice, It is true that under the and in former jurisdictions legal in which remedies are by separate administered tribunals, extent relief obtainable in would be to restrain the sale of damages note until the law; could ascertained at opinion practice but are of that under our both issues may, complainant single desires, if the be tried in a action; damages by a trial of the issue of being preserved to the defendant, he demands it.” if (Emphasis supplied.) point holding out case because of its that, even essentially peti- on the trial anof law issue raised tion, the defendant must demand it in order have a now must defendant, and not the court, trial. The question.

raise that involved N. W. 473, 106 Ames, Neb. Ames v. adjudge the estate; to to real a deed an action to cancel in- one-third undivided of an to be the owner rents on account therein; $1,500 to recover terest plaintiff asked profits; equitable relief. The for and and refused. It issues of fact. for trial of the a Plaintiff defendants. decreed for the court found and plain- prayer appealed. that the shows “The held: We part re- sought equitable a relief, and tiff only grant sought could as the court lief such chancery powers. hand, other its On the exercise of sought might part in an have been a of the relief while prayed court, in no relief is law, action at equity, powers plenary court of as a exercise of its might granted. true, even And this be not have would prayer allowed, for relief been the amendment to the had because, equity acquires jurisdiction a court of when purpose, may retain the cause over a cause for proceed purposes, final determination to a all Equity Pomeroy, at issue in the case: 1 of all matters ed.), Jurisprudence (3d seem rea- sec. 181. would party petition files in the that, to hold sonable where him facts sufficient to entitle district court which states equitable prays legal relief, relief, both part only had at all of law, can be but which may equity, thereby had in he intends to invoke the powers chancery, law, the common of the court. and not filing petition that, doubt after of that There no proceed plaintiff might law, elect at but kind, he unequivocal manifest his election some act should theory him he had commit which would only his claim to relief. Here the abandoned showing acts relied on as such election are the two questions requests of fact for the submission to a practice jury. courts, it is not an uncommon But purely issues, trial of to submit such jury. jury as be demanded Issues to cannot a But a nothing, right. (Citing cases.) There was a matter of jury with for inconsistent in the demand a therefore, prosecuting theory plaintiff in a suit the equity, that the was nothing record which and on face prevented jury allowed him, a trial been would have had in- favor, his from in in which resulted a sisting equitable relief, and it that was a suit ejectment, as course in and a second that thereof very prop- seems to us could not be had. It equity.” erly regarded in a suit and tried cause (Emphasis supplied.) plaintiff 440,

In N. Deans, 4, Card v. 84 Neb. 120 W. brought ejectment. action in Defendant an asserted quieted ownership prayed title him as to have requested jury against plaintiff. a trial. Plaintiff by plaintiff appeal It On held: “Plain- was denied. complains jury The tiff because he was refused a trial. petition ejectment, is in actions in was such as usual ownership alleged real estate, but the defendant prayed equitable relief, for affirmative which could granted not be a trial. This court has held up in a law action where the sets an answer (Citing counterclaim cause triable to the court. case.) Black, held that Jewett 60 Neb. ejectment prays in an where the defendant action pleads entitling relief, affirmative facts thereto, him are the issues triable to the court without jury. case rule, The at bar falls within this and a properly jury trial was denied.” by analogy, having It seem would seeking brought equitable relief, action “affirmative granted trial,” in a and defend- not be could injected having issue, into case law that the ant triable would be to the court. entire cause Pillard, Krumm 177 N. W. quiet possession. adverse title based on

an action jury. by a trial demanded was refused. defendant appeal statutory relating provisions On we held: “Our subject provide: arising to this fact ‘Issues of in actions recovery money, specific personal for the or real or property, jury.’ shall tried Rev. St. sec. by- ‘All other issues fact shall be tried subject power court, to order issue its or issues jury, provided to be tried referred as Code.’ Rev. St. 1913, sec. 7844. The -decisions of our subject pretty court on this have established a clear line of demarcation between these two classes of cases. legal purely When the action is one in its nature, party ordinarily, right, either aas matter of jury is (Citing cases.) entitled to demand a trial. When the cause is for relief, a cannot de- right by party try any manded as a matter of either to arising (Citing issue in the case.) case. [In the instant jury.] case there nowas demand for a only question “The then to be determined whether present regarded purely the action to be aas law ac- calling tionor is it one equity for the exercise of the power by of the court. This must be determined the allegations prayer petition.” (Emphasis sup- the of plied.)

In In Buder, re Estate of 117 Neb. 219 N. W. proceeding we held: “An action or at law will not be equity, merely converted into one in because the answer up sets defense to the claim.” It seems to me that the converse of the rule would also be true. “ body opinion In the we said: ‘Whether a case depend is one in upon law, at does not the understanding counsel, of or of the court, nor upon upon form of rendered, but the na- ” pleadings.’ ture of the action as shown

I call attention to another fact record. Con- cededly petition to foreclose the mechanic’s lien was equity. pleaded an action in Plaintiff that there was owing due and him from the the sum defendants

85 prayed judgment prayed for which he amount $745 for a lien premises. on alleged they Hynes that answered and

Defendants plaintiff plumbing heat- had contracted with ing; Hynes property to that when sold defendant agreed pay 15, 1953, Rradish on November Bradish owing Hynes plaintiff the-amount the sum agreed arrangement; plaintiff to that and that $700 plaintiff performed prem- that thereafter no on work Hynes; for the defendants and that therefore the ises August charge lien filed in barred and against Hynes fully paid.” defendants had “been Hynes plea payment then

Defendants offered owing by the amount once them on the contract. It is that issue court holds should have been sub- request. mitted to without —and I now call attention to the case of Witte, Schreiner v. plaintiff N. W. 2d 831. In case brought an action foreclose chattel mort- gage deficiency judgment, and for a in case one existed, mortgaged property. after sale The defendant alleged by cross-petition partnership; answered and plaintiff damage it abandoned defendant’s in the plaintiff pay sum $2,500; had failed half his personal damage; to defendant’s taxes and that the purchased. owed defendant for merchandise by reply partnership alleged Plaintiff admitted the and liability termination; its denied as to the ad- taxes; and owing purchased. the defendant for mitted merchandise It will be that all noted three of these had defenses nothing question liability to do with the of on the chattel mortgage liability deficiency judgment. or a They foreign equity They presented were issue. money judgment, just of defendant to recover a presents instant case of defendants Hynes money judgment, Hynes longer to avoid a no nn having any interest in the real estate. plaintiff

The court found for the and decreed fore- mortgage; it closure of the chattel found in favor judg- third cause of action defendant on his and awarded against plaintiff purchased; ment for the merchandise recovery and it a on the items balance of the denied cross-petition. mortgaged set out in the The chattels were sold and the confirmed. Plaintiff moved for sale deficiency judgment. objected juris- a Defendant (As pointed diction the court. out later this is ex- actly objection Hynes which the defendants made jury here, made reference to no until on mo- trial.) grounds tion for new One of the advanced was that the defendant was entitled as matter of to a law jury legal plaintiff against trial on the claims which had deficiency him. trial court The denied the motion for a judgment, and found that defendant was entitled to deficiency trial on the issue of the amount of a judgment. given Plaintiff was leave to file an action any deficiency.” at law to recover “for We stated: “The defendant the instant case sub- equity, up mitted himself by way a court set his defense cross-petition, affirmatively alleged dam- ages, plaintiff was indebted to defendant for mer- purchased personal paid by chandise taxes defendant. “ principle equity jurisprudence Tt is a well-settled that where a court of has obtained any purpose a cause for all, will retain it for and will proceed adjudicate to a final determination case, unnecessary litiga- all tion.’ in issue, matters and thus avoid * * * plaintiff in the instant case followed procedure. the correct titled The defendant is not en- now voluntarily brought trial. to a He a law issue right, into the case. He had a if he was so minded, to cross-petition damages file his amended in this independent existing suit. action, cause of favor, in defendant’s and would not be lost to him, * * * barred, if left it he had out of this suit. The effect again of the trial court’s is that must litigate the issues between himself and the defendant, presented questions may submit the that so defendant supra. jury.” Witte, v. a Schreiner court’s quote effect of the the exact last above is The reversed There, however, we in this case. decision judgment deficiency that a and directed trial court entered. of this court of the decisions another

The above benefit decision, instant and without is cut down being cited with The above decision mentioned. was of approval supra, discussed Mills,

in Brchan v. The Crete herein. point call attention to Armbruster

At desire Drainage Stanton-Pilger Dist., 165 Neb. N. W. sought mandatory plaintiffs in- this case a 2d 56. damages. junction Issues were a for and against joined had. court found trial appealed. plaintiffs the action. Plaintiffs dismissed plaintiffs no of ac- had Defendant contended damages, any, for if that the cause tion jury. plaintiffs had to a We held that be tried should mandatory prima proven cause of action for facie recovery prima injunction case to and a facie sustain a damages. remaining question “The to be considered held: We plaintiffs right or not the of whether had join their same action cause of in one and the action damages. question one for This relief and the favorably must be answered two like the other quoted plaintiffs.” Mills, from Brchan v. The Crete We supra. Witte, We remanded and Schreiner present trial. If the decision in the cause for new failing erred in that decision correct, case is on it that if in the event a new trial tell the injunc- plaintiff was not entitled to an found that damage then submit issue to a it should tion, jury. require to waive a We did not do defendant so have been to violate To have done would so. principle that: “Where court of there stated any purpose, has obtained of a cause for proceed will retain it all, will a final and to deter- adjudicate mination of the issue, at case, all matters unnecessary litigation.” thus avoid long-honored The above an established, was in “provided this state. itTo there must now be attached plaintiff proves the his cause of action” clause. Reynolds The' court its rests decision on Warner, ' supra, support “and the cited authorities of it.” As attempt above, stated case that involved an to establish attorney’s an lien. provides: attorney,has

The statute “An a lien for a general compensation upon any papers balance of of his possession client which have come into his in the course professional employment; upon of his money in his belonging hands tó client, his in the hands of the party proceeding adverse in an or action in which the attorney employed giving from the timé of notice of party.” § the lien to that 7-108, R. R. S. 1943. right recognized

What is the nature of the the statute? Sayre Thompson,

In 18 Neb. 24 N. W. 383, we held the statute was but re-enactment of the com mon law. Brooks, Cones v. 60 Neb. N. W. declaratory we held that statute was of the common law. This Brailey, followed Zentmire v. 89 Neb. 158, 130 N. W.

So we must start attorney’s then with the fact that an right. lien ais common law remedy

What is the to enforce that common law right? point attorney’s Here I out that lien law provides remedy. respect no In that it differs from remedy provided for the enforcement of a mechanic’s petition directly lien where a authorized. pointed It is out in Cones v. Brooks, that the gives attorney statute two classes liens. One is retaining given- money lien which is papers on possession' belonging which have come into his ’to' his money charging upon lien client. The second lien is giving party, of notice an adverse 'the hands perfect being lien. party to essential adverse retaining it to a amounts lien we held As to the against papers possession of the to hold mere being attorney fully paid. That the client until the litiga- necessarily remedy, only that the follows largely charging lien. As to do with tion has had could be held a number of remedies have available. Brailey, supra, we affirmed the denial

In Zentmire v. property injunction prevent en- the sale of Hennings, attorney’s lien. In Gordon v. force an “equitable 228,W. we referred to 131 N. satisfy right” attorney lien. his of an Petersen, 282, 391, 76 Neb. 107 N. W. In Petersen v. attorney attempted 812, 124 Am. an to intervene S. R. in a where a reconciliation had been had. divorce case sought compensation in for his services the suit. He attorney plaintiff error. It The became in was denied. proceeding by We held: “The error pros- particular from suit at differs in no essential a law against upon by him ecuted husband recover as quantum a meruit for rendered to the wife services the divorce suit.” Lewis, 446,

In 77 Neb. 109 N. W. 735, Corson v. was held that the value of under a con- services employment quantum was under a tract of recoverable meruit. George, 426, 487, 140 Neb. 299 N. v. W. Card 8 N. 2d Casteel, 690, Marshall v. Neb. W. again Albers, 144 13 N. in Nicholson attorney has no lien for

W. 2d we held except provided performed him sec- services 7-108, tion R. R. S. Reynolds begins quote from Warner, court its the trial court with: “When determined that not entitled relief,

the interveners were power legal without determine the action was jury.” without the intervention of language I submit that the relates the to the “when” time of the determination in the sense “at time” and not to fact of the determination. That is the meaning common of the word. “When” the court did determine that interveners were not entitled to relief? Reynolds

The actual issues in the case were between interveners and the defendant owners of the cause of action which was in foreclosure. The interveners were employed mortgage Cheyenne County. to foreclose a They filed a lien for services in that case and in other Dodge County. cases in peti- Interveners then filed a attorney’s tion in intervention to enforce an lien. The opinion Cheyenne county recites: “The fees in the paid. foreclosure case were A small amount due expenses petition for costs and at the time this of inter- paid prior taking vention was filed but was any depositions in the case.” It is fair construction paid Cheyenne interveners had been their fees for County petition services before the in intervention only was filed small amount was due for “costs expenses” petition when the in intervention was (when) filed. petition follows that at the time in intervention filed, interveners were not entitled charging (Here point a lien. out that section 7-108, provides general R. R. S. lien for a “balance of compensation.” It makes no reference to “costs and ex- penses.”) mortgage The owners of the interest claimed damages wrongful for abandonment of the case the They pray money interveners. did not for a recoupment but rather damages a credit as a arising from a breach of contract. attorneys

The trial court held that the could not en- charging Cheyenne County force a lien in for services Dodge County. We affirmed. This is in accord with our decisions. alleged beginning “at trial” debtors the the jury

demanded trial on the issue of the fees due Dodge County litigation. preserved “This their * * * upon to a law the issue in a action. * * * try jury” court these refused issues without a petition prejudice and dismissed interveners’ without to an at action law. got

It follows that at the time “when” court point except of trial there no he was issue to tried issue a law cause action. disapproved opin- I refer four now the cases ion in the instant case.

At the time “when” the court denied Gifford supra, trial in Gifford, Parsons Co. v. Construction it had already equity ready try tried the issue and was damage (law) equity issue. The court had exercised its jurisdiction equity proceeded in the action and to de- remaining equit- termine the issue in the exercise of its powers able Spelts in full accord with the rule stated in the Company

Lumber case which was taken from having Gibson case, which is that an court obtained purposes would retain it for the administering complete relief. County In supra, Robinson v. Co., Dawson Irr. it does appear injunction when the claimed to an began. waived. I assume it was when the trial In event the court jury. tried the law issue to a As pointed damage out, held issue inci- jury’s dental to the issue and verdict was “advisory only.” Koutsky-Brennan-Vana supra, Gibson v. Co., discharge found cause to alleged

record an mechanic’s lien should be sustained. So that at the time “when” the court determined the law cause it had jurisdic- exercised trial its tion and then determined the law action for the balance equity. due We affirmed. Spelts

In Patterson v. Lumber Co., the court 92 equity jurisdiction determine its first exercised

had then lien and mechanic’s validity the extent of the in excess of the the amount determined power anof that the fact of the lien. In view opinion, present I in conceded do that is court to further. the case not discuss shall supra, Reynolds Warner, v. case of that the submit authority to be distinguishable not an quite and is is case. the instant in followed Reynolds go in cited” “authorities to the let’s Now opin- part support supra, of” that “in Warner, v. upon court relies. ion Payne, Seng N. 812, 128 v. The first one injunction and states It an action W. 625. “A court of that: earlier herein rule cited established equity, jurisdiction should having cause, obtained purposes, a decree such and render retain it for all parties protect rights re- with before will spect subject thus avoid suit, matter of litigation.” unnecessary the court In the instant case pointed clearly have out. rule, modifies this as I Reynolds Warner, The second case cited 359, N. W. Alter, 61 Neb. the rule that: is Bank of Stockham obviously “Where cited for 300. was acquires equity powers, the exercise of its court, purpose, jurisdiction be its will purposes try all issues raised in retained for all and to question decided another It, however, the action.” precisely the same conclusion that reached County supra. Co., Irr. reached in Robinson v. Dawson defining the issues the court stated: “The con whole propositions, troversy thus seems to be reduced to two respective rights and the note, the amount due on the proceeds in relation to the derived of the contestants mortgaged property, from the sale of the to which claims, and, record, each had as we view the cognizable adjudicated and to be such as are more equity * * * Construing action at rather than in an law. together, irresistable pleadings the conclusion plaintiffs by the set out note, on the the amount due prin all times petition has at filed, been in their first the note” due on cipal “amount in the case.” issue balance standing issue. The a law alone would adjudi “cognizable and to be more held to be issues was in action equity.” it as an considered in We cated equity cog action is one “If the rule that: under the only required suggestion equity, is in nizable any purpose acquired jurisdiction having court, powers, equity such retain will of its in the exercise try all purposes the case and for all therein.” issues raised had submitted one of court, however,

The trial appeal jury. the defendant contended On issues to (cid:127) * * “* instruction. held: there error in an We advisory, jury, being only finding con was not respect binding In this on the trial court.” clusive and quite comparable holding is to Robinson v. Dawson supra, disapproved. County now Co., Irr. (cid:127) decisions were cited to sustain the The above two equity should rule I contend be followed here.' which part Reynolds the second of the text taken from

As to supra, the court found Warner, v. no Nebraska deci- position. Pomeroy, Equity sions sustain its It cited 1 (4th Jurisprudence Ed.), §§ 237, 238; and Stockhausen Oehler, v. Wis. 201 N. The W. 823. text cited primarily Pomeroy remedy from junction deals with of in- rule in and with such cases con- cerning compensatory damages the allowance of when given not in addition or as an incident of some other special The balance of the text relief. deals with ex- ceptions separately to the rule. The rule is stated distinctly from the rules that follow those states such “The distinctions as ours where: between actions at law equity, and the forms of all and suits such actions existing, are abolished; and suits heretofore and in their place hereafter but there shall be one form of action, ” § 25-101, action.’ S. be called a ‘civil R. R.

which shall separate Pomeroy those situations deals with apart he as such states and from the which supra. Pomeroy Reynolds Warner, is cited v. length quoted Schwartz, v. 50 N. at Varnes D. presently. 197 N. to which shall refer 129,W. lengthy quote repeated here. and will supra, Oehler, The case v. was an ac- Stockhausen quoted from tion for rescission. The McLennan 158 N. and held Church, Wis. W. that: allega- “A trial cannot be defeated the mere tion of action, of an cause as a matter of when fact the cause of action did not exist at the action, time of the commencement of the to the full knowledge plaintiff.”

Assuming holding Reynolds Warner, fitted validity just how much does the rule have in this state? supra, specific

McLennan v. Church, was an action of performance. Specific performance was denied plaintiff appealed. trial court “It The court held: thought, is law, not the as to seems have been and as respondents suggest, counsel for that all in cases where specific performance sought is and is not obtainable plaintiff because of facts known to the when he com- menced his action therefor, that the court cannot or grant by way compensation, should not other relief though proper even it subject be such as would be a * * * damages. an action at law for There but one court up point action; and one form of therefore, where by jury the constitutional of trial would be un- duly prejudiced by going further, there no want power grant legal to relief an action commenced to equitable only, practice grant secure relief and the to speedy relief, such interest and economical controversy progressive settlement of it can no has been so longer properly said that where the facts only legal known to a case warrant relief and were plaintiff his when he commenced action relief, not, cannot afford not, the court should or will ** * legal cases most, all, the former. where granted legal equitable relief, relief is in an action appropriate legal issues are involved to an action of a necessarily, regarded nature; going never, so as grant latter. regarded not so before the constitution was adopted guaranteeing by jury of trial guaranty change (Citing such cases.) did not the situation. holdings to the effect that where the facts entitling plaintiff only legal relief were known to him he when commenced his action for re- grant lief, the court will not former, followed an judicial perfectly competent ancient it which was modify for the court to so as not to exclude cases com- good ground menced faith, and with reasonable there- for, to obtain one form of relief when another form only is obtainable, it has been so as extended (Emphasis supplied.) have indicated.” The court in Stockhausen v. Oehler, did not modify overrule or this decision. it Rather cited authority.

I cite opinion these cases because the court, in its in the case, instant advances no contention of bad faith only but rather contends failed to estab- alleged lish his lien. go supra. now Varnes Schwartz, I shall in-

terpolate references to the instant case and our laws similarity to show the between the two cases. against

This was an action the defendants to recover threshing grain, the amount due for and to foreclose an alleged grain thresher’s lien on the threshed. Defend- alleged ants answer that the lien was void and that jurisdiction. the court was without Here the defendants Hynes objection made no in their answer to the court’s jurisdiction. alleged payment Defendants as full did inter- Hynes Defendants Schwartz here.

defendants posed money of áctioh aon cause counterclaim alleged threshing the having nothing the to do with his offered Plaintiff to trial. The cause went lien. alleged They objected. Defendants evidence. lien in except plaintiff, of action cause admitted alleged challenged validity They lien; lien. equitable jurisdiction the court they 'asserted being primary jurisdiction there no “there failed anything adjudication in this lawsuit.” can no They issue of trial “as law.” demanded de- in the instant casé. The was made such demand No objection no evi- on their and offered stood fendants The court their answer. raised as issues dence judg- plaintiff lien and had no awarded that then held the trial court did in the in- ment for case. stant appeal asserted that the court was the defendants

On júrisdiction. that The court held the trial court without as the court now holds in instant had appeal held that the the court trial court did case. On dismissing the action. is the not That effect err in not holding in the instant the court case. holding Dakota case had The reason North import- should be dismissed becomes that the action pointed that in out North Dakota ant. distinct at actions law suits had been tion between quoted above our section 25-101, I have abolished. provision. containing a like R. S. R. provision pointed had out been established Here our statehood.” statute was “before enacted in (Code p. p. 71). § § 2, S., 394; R. Laws pointed legislative its have out territorial I Earlier his- point Guardianship tory. re out that In of Warner, provision the constitutional held by jury (Art. shall remain “The inviolate” Nebraska), “merely operates § I, 6, Constitution preserve, prior right trial as it existed ;'... adoption * of our of 1875.” Constitution right

Obviously by jury provision then the of trial light must be in the of the that 25-101, read fact section years R. S. been R. had effective several before provision adopted. constitutional The Da- North quoted length Pomeroy. kota then at from procedure held that while reformed did not abolish legal the essential and between distinction rights jurisdictions or remedies, “it did combine the two abrogate formerly existing and the distinction between ‘that, procedure single the two modes of and establish á judicial upon conforming action, based to the facts - particular and circumstances of each case, whatever be primary right they nature of the must create, pursuit legal equita- used for the of all remedies, ” “* * * ble.’ It then held: the trial court was refusing correct action, dismiss the and that jurisdiction had to determine the amount due to the though render therefor, even proved the lien invalid.”

Up point to that parallel there is a manifest in the being cases reviewed except and the instant case the conclusion Reynolds of this court, based on directly contrary. Warner, parallel The continues.

The North Dakota court then considered defendants’ they assertion that were entitled ato trial' on payment issue and the counterclaim.

Appellant’s assigmnent “Equity” error here is that jurisdiction subject did not have matter and they hence were by jury. denied the of trial The procedure court holds that under our reformed the trial subject court had matter but erred in submitting jury, the issues having the lien failed virtue of the affirmative defense of the statute of limitations. parallel part. continues in at case Dakota the North counsel Defendants’ “ issue objected ‘As to as follows:

time of jury, demand we law lawsuit treating action. this under a law as the Court is in so far action is an insist this words, In other ” be dismissed.’ the case must that fails when Hynes quoted court, defendants case, instant objected against judgment entry him.” of “to the They jury not mention They trial. did a did not demand Dakota case. as done in the North a trial was directing Hynes

Obviously their here defendants were objec- jurisdiction the The objection of court. to the the in instant the evidence made at the close tion of “any to of the court enter case, went assignment Appellant’s so judgment.” error here of objection. the construed parallel

The continues. pointed at court, as out the the instant case In plaintiff’s Hynes close of evidence defendants the the proof at the failure of the moved for dismissal directed court the motion. to a lien. The trial denied establish The Court holds motion was “indication” the relief court hold that to the would any question established and “would eliminate had been by jury.” happened of That is what the North a trial case. motion to dismiss after Dakota The was made plaintiff’s excepting validity cause of action, not had been admitted. Defendants did demand lien, Hynes jury. jury. Here did not defendants demand parallel appeal In the case ends. North Dakota on was affirmed. it is court’s Here reversed. goes part question Dakota decision North to shall which I discuss later. waiver goes here set it out detail because it

I have Reynolds the rule in the foundation of Warner, judicial upon an “ancient rule,” rests the Wis- applicable is not held, which consin this state provisions procedure above our because of reformed set out. Equity following Pomeroy’s quote from 1 now Ed.),

Jurisprudence (5th p. § “Wherever 457: accepted spirit procedure true has been reformed permit legal only equita- followed, and and courts joined, legal ble causes action be prayed grant remedies purely for and but obtained, will possession, legal compensatory reliefs dam- ages, pecuniary recoveries, and the like, addition place specific equitable or in demanded reliefs great variety in a of cases which would not have come scope general principle within the garded as it was re- upon by original equity jurisdiction, acted which, and in therefore, a court of would have exercising jurisdiction.” (Em- refrained from such a phasis supplied.) The author cites Nebraska cases to along jur- sustain the text with citations from 19 other including supra. isdictions, McLennan v. Church, He contrary. cites no courts to the He does, however, make quite revealing applicable comment, here: “The entirely decisions, however, are not unanimous. In some only accept cases the court has not refused to and act upon spirit procedure, the of the reformed but even, has recognize principle it seem, as would failed the which belonged original jurisdiction equity, prin- ciple having jurisdiction any pur- that, obtained a for pose, might give the court and should full relief and complete justice.” do place Nebraska now takes its along awith few unnamed courts in category. the above my purpose argue

It is not here that we should infringe upon right party the constitutional of a to trial my by jury. it recog- Rather is view we should accept its nize and limitations and the rules under which by exists as established our decisions now directly indirectly by opinion. overruled and the court’s disapproved, any suggest If case is it Reynolds supra. any In Warner, event it is a rather heretofore our decisions use to cut down dull sickle to discussed. Metho Neighbors Nebraska Danielson West & plaintiffs Hospital, 2d W. 77 N. 162 Neb.

dist brought attorney’s “charging lien” an action to enforce held “by agreement.” court The created it within enforce was and action to establish that an of attor equity jurisdiction The “amount the court. by plaintiffs owing the defendant ney’s fees” only Defendant de discussed. issue issue, and the ordinarily jury court held that trial. The a manded question attorney’s is a for services of an the value a cause jury. “However, when then held: The court pleaded a cannot relief is of action for the trial of demanded as a matter be issue in though even the case. This is true defendant equity legal up,a a court ac for when defense, sets any purpose may quires it a cause over purposes proceed to a final the cause for all retain put at issue in the case.” of all matters determination supplied.) reasoning longer (Emphasis [This no now valid.] decree, affirmed the trial al- then court’s by

though jury a had been demanded defendant and as in the There, case, the trial court. instant denied alleged a cause for had relief. up legal set defense defendant which “ordi- There presented narily” question. In the instant case up plea payment set the defendant had novation and equity held that the full. There was court in could purposes proceed the cause for all retain to a final put of all matters at determination issue in case, though jury trial was even demanded. case the court

In the instant holds that the issue payment may in full not be novation determined sitting after the the court cause fails proof, separate but be tried as of apart must a law issue presented by plaintiff.

from issue compelled amI to the conclusion that above de- cision is another of those is cut down present court, decision of the and that without benefit citation mention the court. interesting Neighbors

It is that in Daniel note & Hospital, supra, son v. West Nebraska Methodist Yager Exchange defendant asked this court to follow v. Hastings, supra; supra; Nat. Bank Lett Hammond, v. County, supra; Reynolds Kuhl v. Warner, Pierce supra. opinion in its The court did the case not even Reynolds mention the Warner, cases on this issue. question was cited on the of the restrictions of charging lien. purpose INow assume for the of discussion that there offering jury was error in the court not trial on its again own motion. On that basis I desire to call at- Neighbors tention to & Danielson v. West Nebraska Hospital, supra. opin- Methodist At the close of that purpose ion the court assumed for the of discussion denying jury there that was error in trial. then held necessary appellant that it- was for the to show it jury prejudiced by was denied a trial and that it was appellant the denial. Here the does not show he opinion trial, demanded a and the court’s makes no prejudice being reference to shown. why

am I at a loss to understand this decision is not applicable again among also but here, those not mentioned. go question assuming

I now to the waiver, but conceding holding that the court is correct in point defendants were entitled to trial. out that the court holds that the trial court was not divested subject of matter. exceptions

The bill of shows that the action was tried Hynes appearing by “to the court” with defendants objection counsel. No was made to the trial Hynes’ participated counsel court. Defendants in the plaintiff’s objected cross-examination of witness. He plain- the close At of evidence. introduction to the ground on the dismissal for a moved he tiff’s evidence n He elected his lien. establish failed to had that Gillespie The made.” has that that record to stand “on that motion similar and a that motion court overruled objection was Bradish. No for defendants made continuing Defendants the court.” “to to the trial made Hynes’ Defendants evidence. Bradish then offered participated of defend- cross-examination in the counsel rested. Defendants Bradish ants Bradish’s witnesses. Defendants a rebuttal witness. Plaintiff then called participated Hynes’ the cross-examination counsel the rebuttal witness. parties

All three rested. entry objected Hynes then “of Defendants against” judgment The trial court then entered them. Hynes. against judgment These defendants defendants question by aside motion to set raised thereafter the ques- they entitled “were to have the money judgment jury, to tion” of a “submitted a since jury no was waived.” then

The defendants are confronted with this rule: right be held to have “Defendant' will waived to a ** * proceed jury trial the trial where he allows objection.” equity S., Juries, a suit without 50 C. J. p. p. § § See, 119, 107, also, J., Juries, 817. 35 C. jurisdictions from 10 texts cite decisions and show opinion no decisions When court’s contra. filed in this case contra there will one decision. Jury, p. §

In 31 Am. Jur., rule stated: general “It is a submission a cause in by objection both sides without waives the to a jury Generally, challenge jurisdic- trial. failure to jury tion waives trial.” The same authority page “Going in section states: to trial demanding jury objecting the court without before * ** jury constitutes a of a trial. waiver the refusal of in the of its court, exercise discretion in such respect, permit jury trial after it has been waived give failure to demand it or notice of a desire for * * * subject exception. it, is not the Defendants neglect cannot avoid the effect of their to demand a jury theory being trial on the that, shit to enforce equitable jurisdiction, a lien and therefore of a demand formality for a would have been an idle and of no avail. One who consents to the trial of a cause appeal without cannot insist on wrong theory, was, because of that fact, tried on a injury.” his Udgaard

I call attention to Schindler, 75 N. D. 625, 31 N. W. 2d It an action to determine property, damages adverse real claims to for waste,, for and for breach of covenant. The action was tried to the resulting judgment against court in a the defendants for possession monetary damages. and for Defendants ap- moved for a new trial. It was denied. Defendants pealed. On the direct issue raised in the instant case the court held: “Next for consideration is defendants’ they jury contention that were entitled to a trial. The claim is that where the action to determine adverse claims is of the nature of the common law action of ejectment rather than that action to quiet regardless title, is, of form, an action at law to jury. be tried to a is There much to be said for defend-

ants’ unnecessary is, contention. however, to decide question though for here, even defendants were en- jury they right. titled to a trial waived that The record judge shows the trial set the case for trial without a jury and that the defendants went to trial' without ob- jection jury They or demand for a trial. raised the question upon time, a motion a new trial. first happened [That is what Certainly case.] the instant voluntarily the defendants could not submit the issues jury of a case to a court a without and hold in reserve jury their claim of a ato trial in the event the go against (Emphasis supplied.) decision should them.” p. § is: S., Juries, J. The court cited 50 C. submitting by voluntarily a con- jury “A trial is waived by per- troversy court, or to the determination any objection mitting demand for a or without proceed jury it.” In 35 hear and determine trial to p. § this Co., the second clause of 114, 204, under J., Juries, C. Crane-Churchill rule, our decision Schumacher points syllabus 609, is cited. The W. 66 Neb. 92 N. transferring an action “An order in our case read: ejectment docket, de- because moving preclude the answer, will not fenses raised party purely legal demanding issues be that the from timely jury, request jury if for a tried his * * * going upon. case, In such to trial insisted demanding jury any upon issues, a as to all the without jury In the them, is a of a as to that trial.” waiver body opinion doubt, held: “There can be no jury first however, that waived at the upon by going all the issues de- trial manding to trial without statutory as to of them. The meth- Any unequivocal waiving od is not exclusive. clearly willingness acts or conduct which show right, forego and are so treated intention objection, trial court will have that effect.” without I submit that under that decision and this record on Hynes any possible right defendants to a waived in this case. Gaghagen, 238, 1005, 39 Neb. 57 N. Sherwin W. general equity

we held: “As a a court will not interpose objection jurisdiction an to its own on the ground plaintiff adequate remedy that the has an law, at retain the cause for trial and but will award the relief o parties would have been entitled in t which * * * Objection jurisdiction to law. of a court equity ground plaintiff on the has an ade remedy quate at must be made law before cause, and on the merits of the will not be entertained appeal the first time in this court made for on the when objecting party.” J., This case is cited in 21 C. Equity, p. along § from with cases some 30 jurisdictions. other again call attention to Given, Larabee v. plaintiff sought equitable

where relief and dam- “* * * ages. held: We to a of the issue damages by jury being preserved the defendant, to (Emphasis supplied.) he demands it.” if In Penn Katz, Mutual Life Ins. Co. party, having

297 N. W. we held: “Where the object, voluntarily jurisdiction submits to equity, a court of the cause will be retained for trial proper on its merits and the relief awarded.” Knight, I now call attention to Miller v. 146 Neb. injunction 207, 19 2d N. W. 153. was an action for an trespasses to restrain of defendants on land claimed plaintiff plaintiff’s right as owner. Defendants denied possession alleged ownership and of the land in them- by cross-petition selves. Plaintiff then claimed that he purchased Knight the land but that title was taken in security money loaned, and that defendants had repaid accordingly been held the land trust for plaintiff. The trial court found for defendants. Plain- appealed. tiff

We retried issue de novo as an action in and held that the evidence sustained the contentions of plaintiff the defendants. But contended that the evi- possession dence the defendants showed to be out of hence defendants were limited to the law action of ejectment. We held as on trial de novo that the evi- possession dence the defendants showed were in quiet hence held: “In the had title. We then

present case, no demand for a sought parties par- made. Both relief. The proceeded theory on the ties to trial that the suit was one. While we think the action was one equity, position no to claim error rights, prejudicial his even if it was not.” 106 directly to contra decision to be a the case

deemI the issue of waiver. makes on now the court that which have followed to which we also the extent It shows applied it to situations “axiomatic” immediately fol- instant case, as exist such more quote no rule lowing “There is held: the above properly equity is suit in a that, than where axiomatic subject- jurisdiction brought has and the court duty parties action, it is to and all matter presented rights questions adjudicate all justice pleadings full to all to do in order authority Apparently parties no other it.” necessary. it has the court holds that Here deemed parties, subject jurisdiction and the matter of the axiomatic rule. denies the balance Knight, supra, Juries, S., is cited in J. 50 C. Miller page along p. § a from other 99, half cases 803, with “* * * party jurisdictions, for the rule that: who to make such demand will be held to have waived fails object that the case was his and cannot afterward jury.” The same rule stated 35 tried without p. supported by page § Juries, 123, 210, almost a J.,C. many jurisdictions. of citations from Kowalski, 2d In Linville v. 149 31 N. W. party, having to ob- 281, we held: “Where voluntarily jurisdiction ject, submits to the of a court equity, the cause will be retained for trial on its proper and the relief awarded.” merits This case cited p. (Annual Part), § Equity, S., in 30 C. J. Pocket along jurisdictions from decisions 15 other with for the “* * * answering generally, merits, rule that: or to the proceeding doing to trial on the merits, both, or objection objection, waives such without ¡J: In Tucker :¡c $ v. Paxton Gallagher Co., 152 Neb. party may 2d we held: “A 41 N. complain be heard W. * * * he has of error which invited. Error assigned upon ruling may not be or action of the the consent taken with made or court district complaining party.” Ankeny, 686, 2d 47, 160 68 N. W. Neb.

In Reller v. effectively may complain litigant of not “A we held: he concurred.” action he induced or in course of which Hughes 358, Inc., In 161 Neb. 73 Bros., Gruntorad v. litigant may predicate 700, “A not N. W. 2d we held: procured action of court he to error on taken consented.” be or to which he

In the case Crunk 816, recent of v. 167 Neb. Glover, parties may 135, 2d we held: “The 95 N. W. not com- effectively plain they of the action of the court which induced.” happens precedents

What now to of this court our cited herein? Of what value are cases now as disapproves authorities? directly, The court now them four of pointing disap- out without the extent of the disapproves It all other “cases of proval. port” similar im- seeking find or without cite them to trial courts legal profession. I or members have cited herein import” cases that seem to me to be of “similar question guides others such of on waiver where given legal profes- heretofore to the trial courts and the sion are of no further value. Luther, v. 105 184, Stevens Neb. 180 N. W.

were asked review and reconsider the rule as to whether violation of statute or ordinance enacted safety protection persons property or of con- negligence. said: stitutes We “If the court were now establishing might first it time, be inclined other follow the line of but decisions, that which has accepted state, of been law the as such people years, ought over and the courts for 30 not to be convincing the most set aside without reasons.” point I out that Parsons Construction Co. v. Gifford, supra, directly the first the decisions disapproved unchallenged as has stood the law this state for 24 years and that the earliest of the decisions sup- cited in

108 Griggs, 165, 29 N. W. port 20 Neb. v. it, Buchanan ago. years The decision decided this was directly analyzed supra, Con- in Parsons Polk, Pickens v. ago. years decided Gifford, Co. struction convincing most compelled are the What am ask: give them. In Patterson does The court reasons? 704, this court held: 254 N. W. Kerr, it has rule and been court established this “Where years by trial courts than thirteen for more followed except changed ought for reasons not to state, approval importance.” grave cited with Hospital, 160 Neb. Methodist v. Nebraska Muller 2d 70 N. W. County Co., point v. Dawson Irr. Robinson

I out that opinion supra, “disapproved” fact but in in the court’s question involved, here 16 decided on overruled unchallenged. years ago, has since been and Hospital, Methodist we Muller v. Nebraska In by ap- question principal this raised that: “The stated peal immunity to the doctrine of adhere is, shall we corporations liability, nonprofit from tort charitable long been established in which has this state doctrine * * * Appellant holdings of this court? asks us to holdings and our seeks have reverse re-examine us they illogical are fundamen- the basis them on and they concepts tally on are based unsound because longer exist. On the other no hand conditions which apply appellee us doctrine of asks stare decisis thereto. “ grounded public decisis is doctrine of stare on ‘The great weight policy and, such, is entitled to and must to, the reasons therefor unless adhered have ceased be clearly manifestly erroneous, wrong exist, are are good or unless more harm mischievous than will ** * doing ‘So, result from so.’ where the court has question law in another decided case and a like subsequently presented, state of facts is the rule of stare * * * easily applies changed. be and will not decisis exceptions, rule, That like all others, is not without its complications resulting prop- in the absence and, erty from rights, privilege, it is if the undoubted not indeed duty, of courts to re-examine their decisions when- * * * they fundamentally wrong.’ ever are satisfied considering following principle applies: latter the overruling deliberately ‘Before made, former decision merely the court convinced, should be not that the case wrongly injury but that less decided, will result ” overruling following from than from it.’ Why applied should these tests and the answers demonstrated here? In the case above we re-examined length conflicting at all decisions and adhered to existing our rule. Here issues blanket dis- approval import, leaving of all cases of similar profession respect courts and the to determine in what disapproved. and to what extent cases are Day In Nebraska Conf. Assn. Seventh Adventists County Hall, N. W. 2d held: public policy “The doctrine of stare decisis is based on great weight. entitled to It should be adhered to clearly unless reasons therefor do not exist or are erroneous or mischievous or unless more harm than good doing will result from so.” suggest it be followed here. The court here strikes many

down not one decision nor four. strikes down disapproval. say, others court cannot blanket No one can say, Only

now what decisions are affected. litigation a series of cases in future can answer that question.

As an sweep indication broad of the court’s disapproving long-established decision and followed cases, precedents, and of the effect on other I call attention Mauzy to v. Elliott, 146 N. W. 142. In 2d question that case surplus proceeds disposition we had the of the mortgage aof foreclosure sale. The of the court in to enter an order dis- posing challenged. of the funds was We held that authority v. Gibson power. cited as We

had supra, Koutsky-Brennan-Vana Parsons Construction Co., County supra, v. Dawson Robinson and Gifford, v.Co. being di- supra, cases three of the four Co., Irr. those opinion. cited, We rectly disapproved in court’s readily supra. Knight, be that It can Miller v. also, may called court and this the future some trial upon effect and to draw distinctions determine Why precedent. opinion present on that the court’s by simply when it be avoided create that situation can precedents. following long our line of established beginning in 15 the case cited Ne- I submit that with including Spelts Lumber Com- braska down and pany line we have unbroken case 166 Nebraska holding directly pointing to or of authorities all contrary proposed opinion. exact say regard Reynolds Warner, full that with proposed opinion upon which the relies. prompts importance me issue decided say research, more. A amount reasonable results disclosed, time, of which are here necessities length, prompt outside limitations of a dissent as to me to close.

Eleanor M. Kinch, appellee cross-appellant, B. Kinch, appellant cross-appellee. Lawrence

95 N. 2dW.

Filed March 34426. No.

Case Details

Case Name: Gillespie v. Hynes

Court Name: Nebraska Supreme Court

Date Published: Mar 6, 1959

Citation: 95 N.W.2d 457

Docket Number: 34503

Court Abbreviation: Neb.