The record-union., 1891-03-08
SUPREME COURT DECISIONS.
Filled March 8, 1911
DEPARTMENT ONE.
No. 1878.
SwAsEY, Respondent,

IL iiCu undiCu 1OJl.J
DEPARTMENT ONE.
SwAsEY, Respondent,
AD.la, vs.. Appellant. No. ls'l7s.
The complaint herein is in the ordinary
form OF an action for the recovery of the
possession of certain personal property.
When the cause came on for trial the ap-
pellant demanded a jury, and her appli-
cation was denied by the court son the
ground that the defense set up was an
equitable defense, and should be tried by
the court in the first instance.n The cor
rectness of this ruling is the principal
error presented on this appeal.
1t has been stated by this court in many
cases that when the defendant interposes
equitable and legal defenses to the COM
plant, the proper rule of procedure for
the court is to hear and dispose Of the
equitable defense before proceeding to
try the issues of law. (Arguello VS.. Ed
lnger, 10 Cal. 160; Estrada VS.. Murphy, Is
Cal. 273: Weber VS.. Marshall, 19 Cal. 457
Lestrade VS.. Barth, 10 Cal. 671; Martin VS.
Zellerbach, 3S Cal. 319; Fish VS.. Benson
II Cal. 49, By making an equitable de-
tense in such action the defendant does
not, however, lose any right which be
would otherwise have to have the issues
of law tried by a jury, nor does the court
by virtue OF being called upon under the
equitable defense, acquire the right to
pass upon all the issues in the case with
out jury. 1t may happen in many cases
that the result Of the trial of the equitable
defense will obviate the necessity of a
trial of the legal issues. The trial may
dispose of all of the issues in the case, or
the equitable relief granted may be such
as to prevent the trial of the issues at law
as was the case in Bodley VS.. Ferguson
go Cal. SID. But, whenever the trial OF
the equitable defense does not have
such result, and the issues at law
remained undisposed of, these issues are
to be tried in the same manner as if nc
equitable defense had been interposed
In Arguello VS.. Edinger, supra, the court
says: 1T upon hearing the evidence the
court should determine there was ground
for relief, it would enjoin the further
prosecution of the action with its decree
for a specific performance; and, on the
other hand, if it should refuse the relief,
it would call jury to determine the issue
upon the general denial. In Weber VS..
Marshall, supra, the court says: 1.-THE
parties are entitled to trial by jury upon
the legal issues" In Lestrade VS.. Barth,
supra, it is said: '.The equitable defense
should, therefore, be first passed on by
the court, as according to the determina-
ton of the claim of the defendant to the
relief he seeks will the necessity of pro-
ceeding with the action at law depend -
In Martin VS.. Zellerbach, supra, the court
says: 1.-THE more regular and orderly
practice in such cases clearly is first to
dispose of the equitable defenses set up in
the answer. If these are found for the de-
fendant, it will obviate in most cases the
necessity of trying the law side of the
action, but if found against the defendant
he still has the right to be heard on his
other defenses."
1t has never been held, however, that
every defense OF an equitable nature that
may be interposed to an action at law
must be heard and determined by the
court before proceeding to try the issues
at law. Such rule Of practice would, in
many instances, be inconvenient and
would tend to embarrass rather than ia
cilitate the trial of the cause. The cases
in which the rule has been laid down
were cases in ejectment in which the de-
fendant asserted such a controlling equity
as, If ripened into a decree, would pre-
vent the plaintiff from asserting his legal
claim. The equitable defense which is
referred to in the rule is properly an
equitable right of action existing in be-
half of the defendant which he might
have asserted in an independent suit
brought by him against the plaintiff for
the purpose of enforcing such right. but
which under our system he can also
rely upon as defense IN an action
involving the same subject-matter
brought against him by the plaintiff.
The party relying upon such equitable
defense must, however, plead it with the
same fulness and particularly as is re-
quired in cases involving like subjects of
inquiry in suits in equity. His answer
being in the nature of bill in eouity.
must contain all the essential averments
of such bill. He then becomes an actor
with respect to the matters alleged by
him, and his defense must be of such a
character as may be ripened into decree
in his favor. Estrada VS.. Murphy, 10 Cal.
273; Davis VS.. Davis, -26 Cal. SO; Carpen-
tier VS.. Oakland, 80 Cal. 443; Bruck VS..
Tucker, ~ Cal. 352.)
1t is very clear upon an inspection Of
the answer in the present case, that there
was no equitable defense presented there
by which, within the foregoing principles,
authorized the court to insist that it should
be tried by the court in the first in
stance" or that would justify the court
in proceeding to try it in advance of a
trial of the issues at law. Not only do
thefacts alleged fail to show such equitable
defense, but it is with much force urged
that the only issues presented by the an
swer are the title Of the plaintiff to the
property sued for, and it's value. In the
first portion of the answer the facts al
legged present no other issue than the
claim of the defendant that she was her
self the owner of the property, which is
only another mode Of denying the plaint-
iff's title. (Thompson VS.. Thompson,
SO Cal. 154.) The separate and dis
tinct answer which the appellant sets up
under the head of Second Count'' is
more in the nature of counter-claim for
damages arising from an alleged conspir-
acy and deceit practiced towards her by
the plaintiff in connection with others.
1t further appears from the record that
after the court had made the above ruling
the appellants attorney stated to it that
he had no evidence to offer in support of
the answer, excepting upon the question
OF the value OF the property; and there
upon the court proceeded to the trial of
the issues presented by the complaint.
1t was urged at the argument, that as the
appellant did not after such ruling again
demand a jury, she is now precluded
from making an objection to the action of
the court. But it was not necessary that
she should make any demand for a Jury.
This was secured to her by the provisions
OF Section 592, G.. c.. p, unless a iury
trial should be waived by her in one of
the modes prescribed in Section 63l, @. C.
P. Not only did she not waive it in any
of these modes, but she had filed written
demand for jury, and this must be held
to be a continued refusal to waive her
right thereto. After the court had once
denied her application it was not neces-
sary for her to repeat the demand. The
action of the court thereafter in proceed
ing TO try the cause without jury was
under her exception.
In view of what is stated above, this
ruling of the court was erroneous, and
for this error its judgment and order de-
nying new trial must be reversed: and
it is SO ordered. HARRISON. j.
We concur:
PATERSON, J.,
GapolfTrI..