— Aрpellánt originally commenced an action at law for the recovery of specific personal property. The property sought to be recovered was three promissory notes, one of which has been eliminated by the parties and is not invоlved on this appeal. The ground upon which recovery of the notes was sought was fraud in their inception, want and failure of cоnsideration. Issue was joined on the original petition. After the cause had been assigned for trial but before the trial was commenсed, appellant filed an amended and substituted petition setting up fraud in the inception of the notes, the want and failure of cоnsideration, and other matters pleaded in the original petition, and prayed a decree rescinding and canceling the nоtes and restraining the appellee from disposing thereof. On the day following the filing of the substituted petition, appellant moved the court lo transfer the cause from law to equity for trial. Thereupon, appellee moved that the substituted petition be stricken upon the ground that it was filed too late. Both appellee’s motion to strike and appellant’s motion to transfer the cause to equity were overruled. The motion to strike the substituted petition was sustained, however, as to a portion of the allegations not material at this point.
The question presented for decision is somewhat novel in character. Based upon numerous deсisions of this court that the allegations of defensive matter in a law action, although cognizable in equity, do not necessarily give thе party pleading the same the right to have the same transferred to.equity, Smith v. Griswold,
The substituted petition states a cause of action in equity. The prayer asks for the rescission and cancellation of thе notes. Jurisdiction to grant this relief is in equity and not at law. The only objection shown by the record to have been urged by appellee against the motion to transfer was that the substituted petition was filed too late. At least, as slated, this is the principal ground of the motion to strike. The overruling of the motion to strike left appellant with a substituted petition setting up a cause of action in equity as his only аvailable pleading. No cause of action at law is pleaded therein, No appeal has been taken from the overruling of the motion to strike.
The proof of fraud which would sustain an action at law for recovery of the notes would, of course, be sufficient to establish a like issue in equity; but proof of fraud in the alleged representations off appellee relied upon in part to constitute the fraud charged *1083 may be established in equity without proof of scienter. That is, there is a difference in the quantum of proof required. The absence in equity of the requirement at law that scienter be established where false and fraudulent reprеsentations of the adverse party are relied upon may be of the gravest importance to the party tendering this issue. The рetition is not, therefore, without equity. The relief sought, in part, is cognizable solely in that forum.
The commencement of an action аt law to recover the notes does not constitute the election of a .remedy which will preclude the subsequent filing of a substituted рetition presenting a cause of action in equity. Barnes v. Hekla Fire Ins. Co.,
The right of the plaintiff in certain cases where error has been made in the forum to have the cause transferred to the proper forum is statutory. Section 10945, Code 1931.
The motion to transfеr was filed before the appellee had answered the substituted petition.. It is no doubt true that in cases commenced at law, in which the defendant may plead equitable issues which, if established, would entitle such defendant to the verdict of a jury, he may not, as a matter of right, have the cause, on motion, transferred to equity because of the presence of such issues. Such is not the situation presented by the pleading in this case. The substituted petition not only stated a cause of action in equity, but the relief of rescission and сancellation of the notes prayed therein is cognizable solely in that forum.
We reach the conclusion that the motion tо transfer the issues tendered by the substituted petition to equity for trial should have been sustained. — Reversed.