Lake v. Tolles

By the Court, Whitman, C. J.: Appellant contends that he should have been allowed a jury trial, and claims the refusal as error. The complaint was purely equitable and sufficient probably in any view but certainly unless specially demurred to, save so far as it showed and prayed damage; but this claim was merely incidental to the main issues and was in reality abandoned, as no proof was offered thereon nor any judgment taken therefor. That the answer raised certain questions as to the rights of property did not, under the constitution of this State or that of the United States, destroy the equitable character of the action. As was said by the supreme court of California on the point of the constitutional inviolability of jury trial: “ It is a right secured to all, and inviolable forever, in eases in which it is exercised in the administration of justice according to the course of the common law, as that law is understood in the several states of the union. It is a right therefore which can only be claimed in actions at law or criminal actions where an issue of fact is made by the pleadings. It cannot be claimed in equity cases, unless such issue be specially framed for- a jury under the direction of the court. It cannot be asserted upon an issue at law, for that is a matter purely for the court. The fact, therefore, that property and rights of property may be involved in the disposition of a particular case or proceeding, does not determine the right to a trial by jury. There-must be an action at law, as contradistinguished from a suit in equity and from a special proceeding, or a criminal action and an issue of fact joined therein upon the pleadings, before a jury trial can be claimed as a constitutional right.” Koppikus v. State Capitol Commissioners, 16 Cal. 249. [291] "Where there is no strict constitutional right the calling a a jury “ is purely a matter of discretion with the judge, and not a matter of pight in the parties.” Van Fleet v. Olin, 4. Nev. 95. Such was this ease, and consequently there was no error in the refusal of a jury trial. The cases cited from New Hampshire do not in the least militate against this position, as they go upon a peculiar constitutional provision. Const. N. H. Sec. 20. The decree does not conflict with any riparian rights of appellant, as the evidence without dispute shows that he had none, being merely a possessor of unsurveyed government land. Lobdell v. Simpson, 2 Nev. 274; Covington v. Becker, 5 Nev. 281. ’ Any other rights he may have had were determined by the district court, upon evidence in some sort conflicting but preponderating in favor of respondent; so such conclusion cannot properly be disturbed. The order and decree appealed from are affirmed.