Church v. Freeman , 16 How. Pr. 294 ( 1857 )

Harris, Justice.

When the distinction between suits in equity and actions at law prevailed, the court might, in a suit in equity, direct issues to be framed and questions of fact to be tried by a jury, when in its opinion the proceedings would be thereby expedited, or costs diminished, or the ends of justice promoted. And when no such order had been made before the hearing, it was competent for the court, upon the trial, to award an issue to determine any question arising upon the evidence. (See The New-Orleans Gas Light and Banking Company agt. Dudley, 8 Paige, 452.)

I understand the practice to be substantially the same under the Code. The 253d section provides for the trial of issues of fact in common law actions by a jury. The 254th section declares that “every other issue,’' which, of course, embraces actions of an equitable nature, is triable by the court. But the section proceeds to declare that the court may order the whole issue, or any specific question of fact involved therein to be tried by a jury. In all this class of cases, the mode of trial is a question addressed to the discretion of the court. If the nature of the issue is such, that a trial by jury will be likely to subserve the ends of justice, and facilitate the determination of the action, that mode of trial should be adopted $ if not, the case should be tried without a jury.

Nór does it lie with the parties, as it seems sometimes to have been supposed, to determine whether the issue or a specific question of fact shall be tried by a jury. It is true, that either party, if he desire a trial by jury, may within ten days after the cause is in readiness for trial, give notice of an application for that purpose. Upon the hearing of this application, the court may or may not direct that the issues in the action be tried by a jury. This will depend very much upon the probable course of the trial, and the nature of the questions to be decided. But if the application for a trial by jury be denied, or if no application be made, the court still has the power at the trial “ to order the whole issue, or any specific question of fact involved therein, to be tried by a jury.” Issues of fact in common, law actions must be tried by a jury, unless the parties choose to waive this right. But it is for the court to say in other cases, whether an issue of fact shall be tried by a jury or by the court without a jury. I suppose it is the right of the court, in every case embraced in the 254th section of the Code, to have the aid of a jury upon the trial and to submit to its determination as many or as few of the questions of fact presented by the pleadings as it may deem expedient. I have in repeated instances, availed myself of this power at the circuit.

Entertaining this view of the power of the court upon the trial, it has not seemed to me to be a proper exercise of the discretion of the court, in ordinary cases, to instruct the court before which the caséis to be tried, beforehand, what question it shall submit to a jury and what it shall not. It is better, I think, as a general rule, to leave the court which is to be charged with the conduct of the trial, to determine for itself the manner in which the questions of fact in the case shall be decided.

Nor have I been able to see that this case should be made an exception to this rule. It is true, that it involves a question of fraud. The gravamen of the complaint is, that the settlement which the plaintiff seeks to avoid was unfairly obtained. But, unless I have entirely misapprehended the effect of the pleadings, and the character of the issues to be tried, the determination of the action will involve the examination of very extensive transactions between the parties, covering a period of about eight years, and quite unsuited to a trial by jury. Under these circumstances, it is my duty to deny the motion, leaving it to the court, when the action is brought to trial, to determine for itself, whether it will submit any, and if any, what questions to the decision of a jury.

The costs of the motion should abide the event of the suit.