| Wis. | Dec 11, 1861
By ^e Court,
The demurrer to tbe reply was properly stricken off, as it was not served in time. Still bad it involved tbe justice of tbe case, tbe court might have allowed tbe pleading to be then served on proper terms. But it seems to have been of no importance, as tbe reply was merely a general denial of the allegations in the answer.
Tbe defendant demanded a trial by jury, which was refused. It is well understood that tbe provision in tbe constitution preserving tbe jury trial did not extend it to equity cases, in which tbe party has never been held entitled to a jury trial as a matter of right. Tbe only ground for raising any question upon tbe point, is tbe fact that tbe complaint asks for a personal judgment for tbe deficiency. This seems to be uniting a legal cause of action for tbe debt with tbe equitable remedy to cut off tbe right of redemption. See Sauer vs. Steinbauer, ante, p. 70; Walton vs. Goodnow, 13 Wis., 661" court="Wis." date_filed="1861-05-15" href="https://app.midpage.ai/document/walton-v-goodnow-6598439?utm_source=webapp" opinion_id="6598439">13 Wis., 661.
But whatever doubt there may be as to tbe power of tbe legislature to authorize tbe joining of a legal cause of action, with respect to which no such practice existed prior to tbe constitution, with an equitable one, and then have tbe whole tried by tbe court without a jury, against tbe express demand for a jury by tbe defendant, we think tbe defendants
The only defense attempted to be set up was, that the title to a part of the lots for which the notes and mortgage were given had failed. The answer averred notice to the plaintiffs before they purchased the notes and mortgage, but there was no proof of such notice. And this being so, he having purchased the notes before due, the defense, even if good as against the original party, could not be set up against the plaintiff. Croft vs. Bunster, 9 Wis., 503" court="Wis." date_filed="1859-11-18" href="https://app.midpage.ai/document/croft-v-bunster-6597894?utm_source=webapp" opinion_id="6597894">9 Wis., 503; Cornell vs. Hichens, 11 Wis., 353" court="Wis." date_filed="1860-07-10" href="https://app.midpage.ai/document/cornell-v-hichens-6598117?utm_source=webapp" opinion_id="6598117">11 Wis., 353; Dutton vs. Ives, 5 Mich., 515" court="Mich." date_filed="1858-10-14" href="https://app.midpage.ai/document/dutton-v-ives-6631885?utm_source=webapp" opinion_id="6631885">5 Mich., 515.
■ The judgment is affirmed, with costs.