Morse v. Wilson

HAYNES, C.

Plaintiff appeals from an order denying his motion for a new trial. His action was brought under section 1050 of the Code of Civil Procedure, for the purpose of determining an adverse claim, which the defendant made against him for services as a mining superintendent, amounting to $1,374, and the further sum of $1,702.25 for boarding men employed by plaintiff at his mine in the state of Nevada, alleging that defendant’s claim is unfounded, and praying judgment that it be so declared.

The answer denied the allegations of the complaint, and the defendant also filed a cross-complaint, alleging that plaintiff was indebted to him in said sum above stated, and prayed judgment therefor. Plaintiff answered the cross-complaint, denying its allegations, and therewith filed a counterclaim for the sum of $3,651.97. The cause was tried by a jury, which returned a verdict for the defendant for the sum of $3,059.05, and judgment thereon was entered.

The first three points made in appellant’s brief are devoted to the question whether the so-called cross-complaint of the defendant can be regarded as a counterclaim, contending that it is not equitable in its character, and in their fourth point they elaborate the proposition that plaintiff’s action is equitable in its character, and “in its nature

quia timet.”

No objections were made to the form of the action or to the pleadings, either by demurrer, or motion, or objection to evidence. Such questions, if made, could be considered only upon appeal from the judgment.

The case was, however, tried by a jury, -and appellant contends that the action being equitable in its character, a jury trial was not demandable as of right, and therefore its general verdict was merely advisory; and it is further contended that as it does not cover the material issues, it is insufficient.

These questions cannot be made on a motion for a new trial, and can only be made on appeal from the judgment. (Code Civ. Proc., sec. 656;

Riverside Water Co.

v.

Gage,

108 Cal. 240;

Brison

v.

Brison,

90 Cal. 323.) The sufficiency of the