Connell v. Bowes

GIBSON, C. J. —

In this action plaintiff filed an amended complaint asking for specific performance of an option to sell capital stock of a corporation, for an accounting, and for an injunction. Defendants filed an answer and a cross-complaint for damages, bringing in further parties as cross-defendants. Judgment was entered for the plaintiff, but the lower court subsequently granted a new trial on the ground of insufficiency of the evidence to sustain the judgment. Plaintiff and cross-defendants appealed from the order granting a new trial, and defendants made this motion to dismiss the appeal on the ground that the order was nonappealable under sec

[871]

tian 963, subdivision 2, of the Code of Civil Procedure, which permits an appeal from an order granting a new trial only where a jury trial is a matter of right.

An inspection of the record discloses that the amended complaint purports to state a cause of action of an equitable nature, in which jury trial is not a matter of right. The cross-complaint, on the other hand, asked for damages, and although equitable relief in the form of cancellation of the option might also be allowed thereunder, the pleading purports to state a cause of action of a legal nature in which, if pursued independently, a jury trial would be a matter of right. Whether any cause of action is stated by the pleadings need not be determined upon this motion, and the sole question, therefore, is whether the interposition by defendant in an equity action of a cross-complaint of a legal nature will entitle either party to a jury trial of the legal issues raised by the cross-complaint, thus authorizing an appeal from the order granting a new trial.

Defendants, in contending that the cause is essentially equitable in nature, that it is not changed in character by the filing of the cross-complaint, and that, therefore, there is no right to a jury trial, rely principally upon the case of

Bettencourt

v.

Bank of Italy,

216 Cal. 174 [13 P. (2d) 659], which states that where the gist of the action is equitable, the plaintiffs’ prayer for damages is merely incidental to the relief sought and there is no right to a jury trial. It is now established in this state, however, that if a complaint states two complete rights of action, one legal and one equitable, a jury trial may be obtained upon the issues raised by the legal cause. (See