District Township of Grant v. Bulles

29 N.W. 439, 69 Iowa 525

Opinion

Seevers, J.

The only error assigned which we deem it necessary to determine is whether the court erred in making a compulsory reference, and this depends on the question whether this is an action at law or in chancery. The third count, which is based on the award, is clearly an action at law. There is not a single element which pertains to the jurisdiction of equity involved in the determination of the issue formed on such count. It is equally clear, we think, that the other issues are such as obtain in actions at law. It is sought, in the first and second counts, to recover for money which the defendant, as treasurer of the plaintiff, received and converted to his own use. This, clearly, to our minds, does not present issues which ever have been recognized as cognizable in equity. There is a clear distinction between this case and Blair Town Lot and Land Co. v. Walker, 50 Iowa, 376. In this case, under the first two counts, all the plaintiff has to establish in order to recover is the amount of money received by the defendant, and his failure to account therefor. The issues are exceedingly simple, — much more so than in McMartin v. Bingham, 27 Id., 231; and, following that case, we think the court erred in referring it, and thereby -depriving the defendant of the right of trial by jury, to which, under the constitution, he is entitled. The statute now in force is substantially the same as when the case last cited was determined. We therefore deem it ■ unnecessary to state the reasons at length upon which our conclusion is based, deeming it sufficient to say that the ground is fully covered by the opinion in said case. A reference to it is therefore all that is required.

Reversed.