59 Neb. 339 | Neb. | 1899
In this action, commenced by plaintiffs in error in the district court of Lancaster county, it was alleged for cause that the defendant and plaintiffs had entered into a contract, in accordance with the terms of which the defendant was to, and did, purchase at judicial sale a quarter section of land situate in York county, this state. The title, as it was stipulated it should be, was taken in the name of John H. Gunsolus. It was also pleaded that it was of the further conditions of the cofitract that the defendant should enter into possession of the farm, manage or lease and, if opportunity offered, sell it, and account and pay to plaintiffs any sum of the consideration received which remained after payment of certain liens existent against the land; also, for improvements made on the farm while in defendant’s care, and the adjustment of other matters noticed in the contract. It was pleaded that the defendant had violated the contract, had realized from the sale of the land a considerable sum,
In an error proceeding to this court it is of the assignments that the trial court erred in its denial of the plaintiffs’ demand for a jury to try the cause. In a strictly law action a party is entitled to a jury trial as a matter of right. See Constitution, art. I, sec. 8; Code of Civil Procedure, sec. 280; Mills v. Miller. 3 Nebr., 94; Lamaster v. Scofield, 5 Nebr., 148. It is urged for defendant that there were issues in the case which were in their nature equitable. If so, they were but incidental to the main
It is asserted for defendant that, when the cause was, on motion of defendant, placed on the equity docket, it necessarily settled the question of the right, of a, trial to a jury. With this view we can not agree. When the case was called for trial, or prior thereto, the plaintiffs, not having waived their rights to have the issues submitted to a jury, or been denied a jury trial, could demand it on whatever docket the case appeared.
It is urged for defendant that the court determined all the issues in favor of the plaintiffs as to which a jury trial could have been demanded, and this being true the error, if any, in the refusal of such a trial was without prejudice to the rights of complainant. It has been said by the supreme court of Iowa: “'Where the evidence would have warranted the court in directing the verdict, error in ordering it tried to the court is not ground for reversal.” See Garretson v. Ferrall, 61 N. W. Rep. [Ia.], 251. But this question need not be decided at this time. The action was one at law. The main and all the incidental or elemental issues were properly herein triable to a jury, and at least one that was very material was determined against the plaintiffs; and further, on the whole evidence, we can not say that fair and reasonable minds might not as to this issue have disagreed.
It was error to refuse a jury trial. ' The judgment must be reversed, and the cause remanded.
Reversed and remanded.