Simonton v. Kelly

Wade, C. J. This was an action to foreclose a mechanics’ lien, tried at the June term of. the district court of Lewis and Clarke county. The defendant made a motion asking that the cause be tried to a jury. - This motion was overruled, and the cause ordered to be and was tried before the court sitting as a chancellor. This action of the court is assigned as error. This being a suit to foreclose a mechanics’ lien, is an equitable action, and was properly tried to the judge sitting as a chancellor, and without the intervention of a jury. A jury in such a case is only proper when asked for by the court, in aid of its conscience upon any particular question or issue in the case. This case involving the same questions as those decided at this term in the case of Mochon v. Sullivan, reference is here made to that decision. Judgment affirmed.