9 Utah 3 | Utah | 1893
This action to quiet title is brought upon
It appears from the abstract, as it is presented, that this •cause came on for trial on May 6, 1891, before the court without a jury. The attorneys of the respective parties were present, and conducted the trial, which lasted several •days. At the close of the trial, arguments of the respective •counsel were made, and the case was finally submitted to the court without a jury, for its determination. The attorneys of both parties were present during the entire proceeding, and it does not appear that any demand for a jury trial was made, or that any objection or exception was made, at any time during the trial, against the right •of the court to try the ease without a jury. This objection is raised for the first time in this court. After the •case was submitted, the court entered a decree in favor of the defendants, and against the plaintiff, quieting and confirming the title of the defendants to the land and claims in controversy, and adjudging the defendants to be the owners thereof, and entitled'to the possession of the same. The plaintiff served his notice to set aside the findings, decision, and decree, and for a new trial, because of irregularity in the proceedings of the court by which plaintiff was prevented from having a jury trial, and because the court tried said cause without plaintiff having waived his right to a trial by jury. The motion was based upon the minutes of the court, and upon an affidavit filed, wherein affiant states that plaintiff did not, orally or in writing,
The appellant contends that the trial court erred in adjudging that the respondents were the owners of the-premises in controversy, for the reason that respondents, filed no counterclaim or cross complaint. We do not think this contention can be sustained. No objection was taken to the answer before judgment, and the respondents alleged facts which seem to entitle them to affirmative relief under section 2326, Rev. St. U. S.; Wolverton v. Nichols, 119 U. S. 485, 7 Sup. Ct. Rep. 289. It is not what a pleading: is called which determines its character, but the facts which.' it sets up. Its character must be determined by the court. The relief granted seems to have been proper, under the facts stated and the prayer of the pleadings. Gregory v. Bovier, 77 Cal. 121, 19 Pac. Rep. 232; Kitts v. Austin, 83 Cal. 167, 23 Pac. Rep. 290; Holmes v. Richet, 56 Cal. 311; Rev. St. U. S. § 2326; Wolverton v. Nichols, 119 U. S. 485, 7 Sup. Ct. Rep. 289. We find no reversible error in the record. The judgment below is affirmed, with costs.