O'Dea v. Hibernia Savings & Loan Society

[623]

NOURSE, P. J.

Plaintiff sued upon an order for the transfer of money held in a savings bank account. Defendants had judgment and plaintiff appeals upon typewritten transcripts.

The complaint was framed in two counts—one for money had and received, the other to enforce a gift

“causa mortis”

in the form of an order or assignment executed by Patrick Glynn, deceased, upon the defendant bank. The administrator of the Glynn estate and three fictitious persons were made parties defendant. These persons later appeared as three heirs named in the will of Patrick Glynn. Separate answers were filed by the bank, the administrator and these three heirs. In each answer the due execution of the order, or assignment, was denied and special pleas were entered alleging that the deceased did not intend to make a gift of the money to plaintiff, that he did not know the nature of the paper signed, and that its execution was secured through undue influence on the part of plaintiff. The trial court found that the deceased did not intend to make a gift of the moneys to plaintiff, that he signed the document through the undue influence of plaintiff, but with the understanding and intention of the deceased that the plaintiff would use said order, or assignment, for the sole purpose of withdrawing from the bank only such amount as would be necessary to pay for the medical and hospital care of the deceased.

On this appeal the first attack is upon the order of the trial court denying appellant’s motion for a trial by jury. He argues that he was entitled to a jury as of right because his pleading stated a cause upon contract. The right to a trial by jury is to be determined by the nature of the issues to be tried and this can be determined not upon the complaint alone, but by the issues as framed when ready for trial. Though the first cause pleaded in the complaint was a common count for money had and received the second cause was clearly an action to enforce an alleged gift

“causa mortis”.

That appellant did not rely upon this first cause is evidenced by his joinder of the administrator and the heirs as parties defendant. But, when the issues were ready for trial, the cause became one in equity