Stilwell v. Kellogg

14 Wis. 461

• Court: Wisconsin Supreme Court
• Decided: December 11, 1861
• Status: Published

Opinion

By ^e Court,

Paine, J.

The demurrer to tbe reply was properly stricken off, as it was not served in time. Still bad it involved tbe justice of tbe case, tbe court might have allowed tbe pleading to be then served on proper terms. But it seems to have been of no importance, as tbe reply was merely a general denial of the allegations in the answer.

Tbe defendant demanded a trial by jury, which was refused. It is well understood that tbe provision in tbe constitution preserving tbe jury trial did not extend it to equity cases, in which tbe party has never been held entitled to a jury trial as a matter of right. Tbe only ground for raising any question upon tbe point, is tbe fact that tbe complaint asks for a personal judgment for tbe deficiency. This seems to be uniting a legal cause of action for tbe debt with tbe equitable remedy to cut off tbe right of redemption. See Sauer vs. Steinbauer, ante, p. 70; Walton vs. Goodnow, 13 Wis., 661.

But whatever doubt there may be as to tbe power of tbe legislature to authorize tbe joining of a legal cause of action, with respect to which no such practice existed prior to tbe constitution, with an equitable one, and then have tbe whole tried by tbe court without a jury, against tbe express demand for a jury by tbe defendant, we think tbe defendants here were not entitled to a jury for the following reason: The practice of uniting the legal cause of action for the debt with the equitable remedy of foreclosure, was adopted by statute in other states many years ‘ago, and was introduced and prevailed in this territory before the adoption of our state constitution. See Statutes of 1839, p. 292, sec. 82. The legal remedy was adopted as an extension of the powers of a court of equity in an equitable suit, so that under that practice the whole became an equitable proceeding, in which the parties could, not claim a jury. The constitution provides that the “right of trial by jury shall remain inviolate,” which evidently has reference to the condition of the law as it existed when the constitution was adopted. Gaston vs. Babcock, 6 Wis., 506. It therefore did not preserve it as a matter of right, in those cases which, by the law and practice then existing, were submitted entirely to the judgment of the court. See Watts vs. Griffin, 6 Litt., 247; Commissioners vs. Seabrook, 2 Strob., 560; Jims vs. The State, 26 Ala., 168; Boss vs. Irving, 14 Ill., 171; 5 Barr, 208. The defendants might have demurred for a misjoinder of causes of action, but as they did not do it the objection was waived. Cary vs. Wheeler, ante, p. 281.

The only defense attempted to be set up was, that the title to a part of the lots for which the notes and mortgage were given had failed. The answer averred notice to the plaintiffs before they purchased the notes and mortgage, but there was no proof of such notice. And this being so, he having purchased the notes before due, the defense, even if good as against the original party, could not be set up against the plaintiff. Croft vs. Bunster, 9 Wis., 503; Cornell vs. Hichens, 11 Wis., 353; Dutton vs. Ives, 5 Mich., 515.

■ The judgment is affirmed, with costs.