Home Owners' Loan Corp. v. Snider

4 Conn. Super. Ct. 437, 4 Conn. Supp. 437, 1937 Conn. Super. LEXIS 20

• Court: Connecticut Superior Court
• Decided: February 24, 1937
• Docket: File #49158
• Status: Published

Opinion

SIMPSON, J.

The defendants’ motion is that all issues of fact based upon the complaint be tried to the jury. This is all the Court is concerned with at the present time.

The complaint sets up an action for the foreclosure of a mortgage. This is peculiarly an equitable action. Beach vs. Isaacs, 105 Conn. 169, 176. The defendants concede this. The defendants therefore have no constitutional right to have all the questions of fact in the action determined by the jury. In the case of Doris vs. McFarland, 113 Conn. 594, 608, the Court said:

“The Jury forms no part of our equity system though its use is permitted by statute upon issues of fact in equitable actions. General Statutes, Section 5625. Therein the court has the power to determine all issues. The only pertinent constitutional provision is that the right of trial by jury shall remain inviolate, that is, as it was before the Constitution was adopted. Seeley vs. Bridgeport, 53 Conn. 1, 2; 2 Atl. 1017. Incidental issues of fact involved in equitable issues, were determinable -by the court long prior to the adoption of the Constitution, and this provision therein does not concern such issues.”

The trial of questions of fact incidental to the equitable issues set up in the complaint by the jury is discretionary with the Court. Purdy, Adm. vs. Watts, 91 Conn. 214.

The motion is therefore denied.