126 P. 524 | Idaho | 1912
This action was instituted by the appellant to recover from the respondent the sum of $258.95. The complaint contains two causes of action. The first cause of action alleges that the plaintiff expended for the maintenance and keeping up of the canal designated as the Penninger lateral, and for repairs of the same, and for the payment of the water-master for the years 1904, 1905, 1906, 1907, 1908 and 1909, the sum of $240.47, of which sum the defendant has paid the sum of $93.39, leaving still due and unpaid the sum of $147.08.
The second cause of action alleges that during the year 1904 the defendant secured from the plaintiff an additional right to the use of water flowing in the Penninger lateral and the extension thereof with which to irrigate an additional amount of land owned by the defendant, and in pursuance of such agreement the plaintiff has furnished such additional amount of water as requested by the defendant, continuously during the years 1904, 1905, 1906, 1907, 1908 and 1909, with which to irrigate said additional amount of land and all the lands owned by the defendant; and that the defendant promised to pay for the reasonable use of said water so used during all of said years and with which he irrigated his land, consisting of 223.75 acres of land; and that the reasonable use and value of said water so furnished constituted a running account-between the plaintiff and the defendant, and that the reasonable value of the water during said years is the sum of'$111.87, and that said sum is due and owing from the defendant to the plaintiff. To this complaint the defendant filed an answer, denying specifically the material allegations of the complaint. The defendant also filed a cross-complaint, in which it is alleged in substance that prior to the organization of the Penninger Lateral Co., Ltd., and during the year 1902.
Upon the issues thus presented a jury was called, and the cause was submitted to the jury and the jury returned the following verdict: “We, the jury in the above-entitled cause, find for the defendant.” Upon this verdict the trial court rendered a judgment that the defendant recover from the plaintiff his costs in the sum of $83.85, and that the defendant is adjudged a perpetual right to convey through the New York canal, through the Penninger lateral, sufficient amount of water to irrigate 320 acres of land. This appeal is from the judgment and. from the order denying a motion for a new trial.
The first error assigned by appellant and presented on this appeal is that the judgment of the court is erroneous and void, first, for the reason that the judgment is based solely upon the general verdict rendered by the jury, and that no special questions or findings were made by either the jury or the trial court either upon the cause of action set forth in the complaint or upon the cross-complaint which was for affirmative and equitable relief; and, second, that the general verdict rendered by the jury was not a finding and could not be a finding which could or would in any way be taken and accepted by the trial court as findings upon the cross-complaint, which demanded equitable relief, and is insufficient to justify the judgment.
• An examination of the pleadings clearly shows that the complaint is an action at law to recover damages for debt, and
Notwithstanding the independent right thus set forth in the cross-complaint, such cause of action may be relied upon as a defense in an action involving the same subject matter brought against the defendant. (Rev. Codes, secs. 4183-4188; Bacon v. Rice, 14 Ida. 107, 93 Pac. 511.) The general rule announced by the authorities is that a party relying upon an equitable defense must plead such defense with the same fullness and particularity as is required in eases involving like subjects of equity in suits in equity. The answer, being in the nature of a bill of equity, must contain all the essential and necessary averments required in a bill of equity. When such equitable defense is properly plead as indicated above, the party making such plea becomes the actor and plaintiff with respect to all matters alleged in such affirmative defense, and such defense must be of such a character and such defense as may result in a decree in his favor. (Estrada v. Murphy, 19 Cal. 248; Davis v. Davis, 26 Cal. 23, 85 Am. Dec. 157; Carpentier v. Oakland, 30 Cal. 439; Bruck v. Tucker, 42 Cal. 346.)
The sufficiency of the pleadings in this case as to whether the complaint or the cross-complaint states sufficient facts to constitute a cause of action is not called in question upon this appeal, and does not require this court to determine whether any other matter should have been stated by either the plaintiff in the complaint or the defendant in his cross-complaint in order to make a perfect pleading, and we shall accept the pleadings as sufficient, and each will be accepted as stating a cause of action sufficient upon appeal.
Upon this statement of the pleadings, the trial court instructed the jury as follows:
Instruction No. 3: “The burden of proving his ease substantially as alleged and set forth by the plaintiff in his amended complaint in this action rests upon the plaintiff, and by this is meant that the evidence on behalf of the plaintiff must, in the opinion of the jury, be entitled to more weight than the evidence on behalf of the defendant.”
Instruction No. 5: “Where two or more persons or corporations receive and hold rights of way in a canal for the purpose of conveying water through such canal, such co-owners are tenants in common therein, unless it is expressly provided otherwise in their titles to such interests.”
It should be the common, ordinary rule of procedure in cases where an action at law is brought and an equitable defense is interposed by a cross-complaint, and also in an action cognizable in equity where a cross-action at law is interposed, that the proper rule of procedure for the court is to hear and dispose of the equitable cause of action before proceeding to try the issues of law. (Arguello v. Edinger, 10 Cal. 150; Estrada v. Murphy, 19 Cal. 248; Weber v. Marshall, 19 Cal. 447; Lestrade v. Barth, 19 Cal. 660; Martin v. Zellerbach, 38 Cal. 319, 99 Am. Dec. 365; Fish v. Benson, 71 Cal. 434, 12
In the present ease the allegations of the cross-complaint clearly state a cause of action in equity for the purpose of determining the right and interest of the defendant and respondent in and to the Penninger Lateral and having his title quieted to such interest claimed by him in such ditch, and clearly shows an equitable right of action under the authorities cited above. (Swasey v. Adair, 88 Cal. 179, 25 Pac. 1119; Fish v. Benson, 71 Cal. 434, 12 Pac. 454; Maas v. Dunmyer, 21 Okl. 434, 96 Pac. 591.) Under this condition of the pleadings, it was the duty of the trial court to first determine the issues involved under the allegations of the cross-complaint which could be tried by the court alone without the aid of a jury, or the court could submit to the jury such issues as he deemed proper to aid and assist the court in determining the issues of fact involved. (Fish v. Benson, supra; Swasey v. Adair, supra.)
In the ease of Sandstrom v. Smith, 12 Ida. 446, 86 Pac. 416, this court had under consideration almost the identical question now involved in this case, and this court held that in a suit in equity where a cross-action at law had been presented, either party had a right to have the questions in the law action determined by the jury, and the court of its own volition might submit certain questions involved in the suit in equity to the jury, but in such case the court had the discretion to adopt the findings of the jury as the court’s findings, but if the jury failed to find upon any of the material issues made by
“The jury’s answers in the equity suit were simply advisory to the court. It is clear to us, from the record, that the jury considered the evidence in the equity branch of the ease in answering the special interrogatories, and in the trial of the question of damages took into consideration the evidence on that question, and came to the conclusion that the defendants had not sustained $1,300 in damages, but had sustained the difference between the amount claimed by the plaintiff, which was $926.20, and $200, for which latter sum they gave plaintiff a verdict. But whether that be the correct conclusion or not, after hearing the whole case, they found a general verdict for the plaintiff for $200. The court then set aside the general verdict, and without making any findings of fact whatever adopted the findings of the jury on the special questions submitted to them, as facts found by the court, and entered judgment against the plaintiff, canceling his mechanic’s lien.”
If this be the correct rule, and we believe it is, in the case at bar it was erroneous for the court to submit the entire case to the jury to be determined by a general verdict, without instructing the jury as to the particular issues to be determined by such jury. In other words, the court would have been justified in directing the jury that they should find by a general verdict upon issues made by the complaint and answer, and if the court desired the advice or aid of the jury upon the equity suit made by the cross-complaint, proper questions should be submitted to the jury, and the court might adopt such special verdict of the jury as the findings of the judge, or he might make such findings as the facts and law would justify, but there should be findings made in the equity action the same as upon the law action, either by the court or jury, upon which to base the judgment. (Sandstrom v. Smith, supra.)
Exceptions were taken to the instructions given by the court, which instructions directed the jury to find upon the entire ease; and when exceptions were taken to the instructions and such exceptions were argued upon the motion for a new trial and now urged in this court, such questions sufficiently presented the question as to the correctness of such instructions. It also appears affirmatively that on the motion for a new trial the first and main reason stated in the notice of intention to move for a new trial is “that the judgment of the said court on the verdict of the jury rendered in said cause is void as well as erroneous, for the reason that said judgment entered by the court was based solely upon the general verdict under the statutes of Idaho given by the jury in said cause, and that there was no special findings found by the jury nor submitted to the jury on the part of the defendant in said cause, and that the defendant in said cause filed a cross-complaint asking for affirmative relief, and not only affirmative relief but equitable relief, and the general verdict of the jury did not find as provided by the statutes upon said equitable cross-complaint, and that the defendant in said cause did not submit to the jury any questions asking for findings on the cross-complaint and equitable defense.”
Thus it will be seen that the main ground for a motion for a new trial was that the judgment was void and erroneous, because findings were not made, either by the court or jury, upon which such judgment could be based, and exceptions were taken to the order of the trial court in refusing to grant a new trial upon this assignment. Thus the trial court had full opportunity to correct the error which is now urged for a reversal.
The sufficiency of the evidence to sustain the judgment has been extensively argued in the briefs, but inasmuch as a new trial must be granted, it is unnecessary to pass upon such questions.
The judgment is reversed and a new trial is ordered. Costs awarded to appellant.