State Ex Rel. Word v. District Court , 112 Mont. 458 ( 1941 )

This is an original proceeding for an appropriate writ seeking to set aside an order of the respondent court setting case No. 15,862 in the respondent court for trial as an equity case and prohibiting the respondent court from proceeding with the trial thereof without a jury. Case No. 15,862 has heretofore been before this court, and it was held by this court that the complaint was good as against the general demurrer. (Word v.Union Bank Trust Co., 111 Mont. 279, 107 P.2d 1083.) The sole question for our consideration is whether the action is one in equity or at law. If the action is one at law, then a jury trial must be had. For a general statement of the nature of the action, reference is made to the opinion in 111 Mont. 279,107 P.2d 1083. It is sufficient to say in addition that the answer puts in issue most of the material allegations of the complaint.

It is the contention of defendants that in order for plaintiff[1] to recover she must prove the value of her shares of stock and bonds, and that this would necessitate an accounting to determine the value of the property owned by the dissolved corporation at the time of the acts complained of, the amount of its debts, and the expenses of administering the trust, and other things cognizable only by a court of equity. We do not agree that the action is one for an accounting in equity. As we made plain in the former opinion, the action is one in tort against the trustees of the dissolved corporation to recover damages against them in their individual capacity, and against the bank acting in complicity with them. There is no attempt made in the complaint to seek recourse against property of the dissolved corporation; nor is there any attempt made to seek redress on behalf of other stockholders or bondholders. The action is simply one in which this individual plaintiff seeks damages from the individual defendants and the bank for a tort alleged to have been committed by them, resulting in damages to plaintiff. The fact that books and records will be introduced in evidence is no obstacle to the maintenance of the action at law, or to the trial of the case by a jury.

In actions at law it is frequently necessary to examine books of account. (Bradford, etc., Co. v. New York, etc., Co.,123 N.Y. 316, 25 N.E. 499, 11 L.R.A. 116.) See, also, Nordeen v.Buck, 79 Minn. 352, 82 N.W. 644, where the court quoted from the prior case of Bond v. Welcome, 61 Minn. 43, 63 N.W. 3, as follows: "In ``an action at law for the recovery of money only, the plaintiff is entitled absolutely to a trial by jury, although it involves the examination of a long account on each side; for the Constitution guaranties him that right.'"

The court was in error in setting the case down for trial as[2] an equity case. Plaintiff is entitled to have the issues determined by a jury. It is suggested that plaintiff has an adequate remedy by appeal and, therefore, that this application cannot be entertained. This suggestion is without merit. Obviously the remedy by appeal would be inadequate in this: The trial of the case would undoubtedly cost considerable and, if the plaintiff is entitled to a jury, as we have found she is, any judgment rendered in the case would not be binding upon her. We believe in such a situation this court should interpose its extraordinary power to correct the error of the district court at this stage of the case. Reasons similar to those which prompted us to intercede in the case of State ex rel. Crowley v.District Court, 108 Mont. 89, 88 P.2d 23, 121 A.L.R. 1031, apply here.

The writ applied for will issue.

MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ERICKSON and ANDERSON concur.