Downing v. Le Du

Works, J. This was an action by the respondent against the appellant and her husband to recover on a promissory note executed by them jointly, and to foreclose a mortgage on certain real estate given by them to secure payment of the same. The husband allowed judgment to be taken against him by default. The wife answered, denying the execution of both the note and [472]mortgage, and setting up a homestead in the property. There was judgment against her, and she appeals.

The bill of exceptions shows that she demanded a jury trial, which was denied her, and she excepted. This is assigned as error. The respondent contends that she waived a jury trial, and it is so recited in the findings. But there is nothing in the record showing such waiver, and the recital in the findings that there was a waiver cannot prevail against the showing in the bill of exceptions that she demanded a jury and it was denied. The respondent further contends that the case was a purely equitable one, and that therefore she was not entitled, as a matter of right, to a trial by jury. But was this a purely equitable case?

The defendant denied the execution of the note, and denied that she was indebted to the plaintiff upon it for any sum. These were not equitable issues. Standing alone they would have been triable in a court of law. Could the fact that the issues were joined with others of an equitable character deprive her of the right to a trial by jury upon those which were not equitable? The case of Societe Francaise. v. Selheimer, 57 Cal. 623, does not reach the point. That case was one to foreclose a mortgage, but the party appealing was not a party to the note or mortgage, but was a subsequent purchaser of the mortgaged property, and as to her the issues were purely equitable. It was said in that case: “ Appellant demanded a submission of the issues raised by her answer to a jury, which was refused. Nothing is better settled in this state than that it is entirely within the discretion of the court to grant or refuse such a demand in an action in equity. And this proceeding, so far as ■it affects the appellant, is purely one in equity. She was made a defendant in order that her equity of redemption might be foreclosed, and for no other purpose.”

The other cases cited by the respondent are not in point, except that they support the well-settled rule that [473]