Watson v. Bartholomew

Waterman, J. 1 The first claim urged is that the case made by plaintiff is a strictly legal one, and that the court erred in transferring it to the equity docket, thus depriving defendants of a jury trial. The gist of plaintiff’s action is that he purchased of defendants a certain lot, which they falsely represented to be lot No. 20, and that he took a conveyance from them by that description; that the • description does not cover the land contracted for, and he desires to rescind the sale. Stripped of much verbiage and many immaterial allegations, this is the case. If plaintiff had given some specific property for the lot, and, on a rescission, desired to have it reconveyed to him, equity would have been the proper forum; but that is not this case. If plaintiff desires to rescind, and has grounds for so. doing, he needs only to tender back a deed for the lot, and he then has a right of action at law. And where, as in this case, he asks only a money judgment against defendants, his action can b‘e at law only. The prayer that three hundred dollars of the amount of the recovery be ordered paid to the Iowa Loan & Trust Company, and that he (plaintiff) be required to reconvey lot 20 to defendants, involves somewhat peculiar requests, but they are not of a character to affect the question of what forum the action should proceed in. The trust company is not a party to this suit. If it is entitled to any part of the judgment plaintiff may recover, he does not need the aid of any court to enable him to pay it. Nor does he need the court’s decree against himself before tendering the deed to defendants. No court could prevent him from taking steps to rescind the sale, if he sees fit to do so. We cannot discern any matter of equitable cognizance in the case. In any possible view, it seems but an action for damages. We think the court erred in transferring the cause to the equity docket, and thus depriving defendants of their right to a trial by jury- 583 2 II. What we have said disposes of the case, so far as this court is concerned; and inasmuch as there must be another trial, and before a jury, if defendants demand it, we shall express no opinion upon the merits of the case. On the motion to compel plaintiff to elect as to his cause of action, and also on that to strike, it may be for the interest of the parties that we say something. While plaintiff might well have been required to separate his petition into counts (Code 1813, section 2646, subd. 5), we can see no reason for putting him to an election. On this ground the motion should have been overruled. On all other grounds it should have been sustained. The case will be remanded for proceedings at law. That such is the proper order here, see Kershman v. Swehla, 62 Iowa, 654; Jordan v. Winser, 48 Iowa, 180. Under this order, there is no other question in the case that requires notice at this time. Reversed.