#### Randy HUSAR, Petitioner-Appellant, v. LARIMER COUNTY COURT and One of the Judges Thereof, the Honorable Ronald L. Schultz, Respondents-Appellees.

No. 80CA0960.

Colorado Court of Appeals, Div. II.

May 7, 1981.

Glenn G. Meyers, Fort Collins, for petitioner-appellant.

Ronald L. Schultz, pro se.

KELLY, Judge.

Randy Húsar appeals from the dismissal by the district court of a petition for writ in the nature of mandamus which requested an order requiring respondent to provide Húsar with a jury trial in an action under § 13-40-104 of the Forcible Entry and De-tainer Act, § 13-40-101, et seq., C.R.S. 1973, and under § 38-12-201 of the Mobile Home Park Landlord-Tenant Act, § 38-12-201, et seq., C.R.S. 1973 (1980 Cum.Supp.). We reverse.

Under our state constitution, trial by jury in a civil action is not a matter of right. *Setchell v. Dellacroce,*169 Colo. 212, 454 P.2d 804 (1969); *Parker v. Plympton,*85 Colo. 87, 273 P. 1030 (1929); *Gibson v. Angros,*30 Colo.App. 95, 491 P.2d 87 (1971).

> “[0]ur State Constitution does not require a jury trial in civil cases .... The right to a jury trial in such cases or proceedings is present only when set forth by statute, or rule of court.” *Jones v. Estate of Lambourn,*159 Colo. 246, 252, 411 P.2d 11, 15 (1966).

C.R.C.P. 339, which governs jury trials in county court procedures, states in pertinent part:

> “When trial by jury has been demanded as provided in Rule 338, the matter shall be designated upon the register of actions as a jury action. The trial of all issues so demanded shall be by jury, unless, (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury, or (2) the court upon motion of its own initiative finds that a right of trial by jury of some or all of those issues does not exist

> 

The landlord filed an action in county court against Húsar, alleging that Húsar had failed to pay his rent and that his conduct had constituted an annoyance to other tenants and had interfered with the normal mobile home park management. It asked for possession of the property, its expenses, and for an order removing Hu-sar’s mobile home and personal property. Húsar filed an answer denying the allegations in the complaint and asserting as affirmative defenses waiver, estoppel, and defective notice of termination. He also made a demand for a jury trial. The jury trial was denied by the county court judge who found that there is no right to a jury trial in a forcible entry and detainer action.

Since C.R.C.P. 339 leaves the question open as to whether there is a right to a jury trial in unlawful detainer actions brought in county courts, it is necessary to look to court decisions. *Jones v. Estate of Lambourn, supra.*

*1105While it is true that unlawful detainer itself was not a common law action but is statutory, *see MacKenzie v. Porter,*40 Colo. 340, 91 P. 916 (1907), the forcible entry and detainer statutes are the modern descendants of the common law action of ejectment. *Pernell v. Southall Realty,*416 U.S. 363, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974); *Baumgartner*v. *Sehey,*143 Colo. 373, 353 P.2d 375 (1960); *Davis v. Holbrook, 25*Colo. 493, 55 P. 730 (1898).

These summary proceedings developed to provide the landlord with a quick procedure to remove a hold-over tenant. 3A G. *Thompson, Real Property*§ 1370 (1981 Repl. Vol.). Ejectment actions were actions at law and thus triable to a jury. *Pernell v. Southall Realty, supra.*

> “It is, therefore, clear that if plaintiffs action had not been brought under the Declaratory Judgments Act prior to the end of the lease period it would have been an action in ejectment or forcible entry and detainer and in either ease would have been an action at law. Thus, the character of the action, the entire controversy, is one at law, and one entitling defendants to a trial by jury of issues of fact.” *Baumgartner v. Schey, supra,*143 Colo. at 380, 353 P.2d at 378.

*Stone v. Lerner,*118 Colo. 455, 195 P.2d 964 (1948) and *Dohner v. Insurance Co.,*109 Colo. 35, 121 P.2d 661 (1942) do not mandate a contrary result. Those cases stand for the proposition that in an action under the Forcible Entry and Detainer Act, there is no right to a jury trial where the only issues to be tried are equitable. Here, the predominant issues to be tried are legal. *Miller v. Carnation Co.,*33 Colo.App. 62, 516 P.2d 661 (1973). The general assembly recognized that there could be jury trials in forcible entry and detainer actions by the language used in § 13-40-115, C.R.S. 1973, referring to both court and jury trials.

The judgment is reversed and the cause is remanded to the district court with directions to remand the cause to the county court for further proceedings consistent with this opinion.

PIERCE and VAN CISE, JJ., concur.