72 P. 938 | Utah | 1903
This is a proceeding in mandamus, original in this court. It appears from the affidavit of the relators that they are defendants in an action pending in the First District Court in and for Box Elder county; that prior to the setting of the said cause for trial, and before the same hád ever been called for trial or for setting, and they never having waived a
In plaintiffs’ complaint in the district conrt it is
It is conceded by the respondent that, if this be an action at law, the defendants are undoubtedly entitled to a jury trial; but Respondent contends that, because an injunction is sought, the action is one in. equity, and therefore defendants are not entitled to a jury trial. Under the issues presented by the pleadings, the action is one of trespass guare clausum fregit, and as such is' a law action, and, although in the action application is made to the court to exercise its equity powers in granting injunctive relief, this is not sufficient to deprive either party of his rights to have the legal issues submitted to a jury. In State ex rel. Nichols v. Cherry, 22 Utah 1, 60 Pac. 1103, it was held that where the
The defendants having complied with all the requirements of the statute to entitle them to a jury trial, a peremptory writ of mandate must therefore issue, commanding the district court to grant a jury trial.