Curnow v. Gravel

McKee, J. — This is an appeal from a judgment of the Superior Court of Calaveras County, rendered in an action for the foreclosure of laborers’ liens upon certain mining property, and from an order refusing to grant a new trial.

The motion for a new trial was made upon a bill of exceptions, which contained specifications of errors of fact and of law, upon which the moving party relied.

The alleged errors of law are: 1. That the court refused to allow the defendant a separate trial of the respective claims of the plaintiffs; and 2. That it refused to order a trial by jury.

1. The action was brought under section 1195, Code of Civil Procedure, which provides that any number of persons claiming liens against the same property may join in the same action. On the calling of the case for trial upon the issues framed by the complaint and answers, defendant demanded a jury trial, and a separate trial of each cause of action. The court denied the demand for a separate trial, and there being no jury in attendance, — the regular panel of jurors having .been previously discharged, — denied the demand for a jury trial unless the defendant would make a deposit of money with the clerk sufficient to pay the clerk’s and sheriff’s fees for summoning a jury and the jury fees for twenty jurors, estimated to amount to sixty dollars in all. This the defendant would not do, and the court thereupon proceeded to try the case without a jury. But before the plaintiffs opened their case the defendant asked leave to withdraw its answer as to the plaintiff Sullivan, and that answer was, on defendant’s motion, stricken out; and the case was tried on the issues joined by the plaintiff Ournow and defendant.

In the refusal to grant a separate trial there was no prejudicial error, even if it were conceded that the court had no power to consolidate the actions, because as the defendant after its demand for a separate trial withdrew [264]its answer to Sullivan’s cause of action, it waived the trial in that case which was previously demanded and refused; and there only remained for trial the issues joined in Curnow’s case.

Nor was there any prejudicial error in denying defendant’s motion for a jury trial after its refusal to comply with the condition upon which the court was willing to order the issues in the case to be tried by a jury.

As the object of the action was foreclosure of laborers’ liens upon real property as security for money due to persons performing manual labor on the same, the action was an equitable one. A mechanic’s or laborer’s lien is in the nature of a mortgage on the land (Ritter v. Stevenson, 7 Cal. 389), and an action for its foreclosure is a judicial proceeding in equity in which a party to the proceeding is not entitled as matter of right to a jury trial. The code rule, in such cases, is that “ issues of fact must be tried by the court, subject to its power to order any such issues to be tried by a jury,” etc. (Sec. 592, Code Civ. Proc.) Granting or refusing a demand for a jury trial in an equity case is therefore entirely within the discretion of the court. (Societe Francaise v. Selheimer, 57 Cal. 623.)