Whittier v. Auth

STURTEVANT, J.

The plaintiff commenced an action against the defendant and later she filed an amended complaint. The amended complaint was answered- A trial was had before .the trial court sitting without a jury. It made findings of fact in favor of the plaintiff and from the judgment entered thereon, the defendant has appealed.

. The plaintiff is the daughter and adopted daughter of Alice Y. Whittier, deceased, and claims title under a deed

[760]

executed December 1, 1922, by the terms of which decedent conveyed to plaintiff’s father and later, on October 31, 1927, he conveyed to the plaintiff. The defendant is the second husband of the deceased and claims title under a deed.dated April 23, 1926.- The last-named deed recites that it was made “ . . . for and in consideration of the love and affection which the said party of the first part has and bears unto the said party of the second part and for the trust Í repose in him that he will care for my child Alicia Gloria Whittier, does by these presents give, grant, etc." In her complaint the plaintiff inserted five different counts: The first was to remove a cloud on the' title to real property; the second was to quiet title to real property; the third was to cancel a deed to real property because of undue influence exercised in the execution thereof; the fourth was to impress á trust on real property; and the-fifth was for recovery of chattels with alternative damages. The action was' tried on the fourteenth day of December, 1927. On the twenty-ninth day of November the defendant made a written demand “that thé above-entitled cause be tried before a jury; and said defendant does hereby demand a jury trial in said cause.” The motion was denied. The defendant claims that the court erred in denying his motion. The plaintiff calls to our attention the fact that some of the counts were distinctly equitable, and all counts were in one and the same action, and that the motion made by the defendant was so broad as not to be addressed to the counts pleading actions at law. The plaintiff then asserts tiiat the ruling 'was not error and she cites and relies on

Meek

v.

De Latour, 2

Cal. App. 261 [83 Pac. 300]; 35 C. J. 217. The court did not err in mailing the ruling.