Johnson v. Johnson , 9 Utah 2d 40 ( 1959 )

WADE, Justice

(dissenting in part).

I concur except I think this is an action to recover real property and under Section 78-21-1 defendant was entitled to a jury trial. That section provides that “[I]n actions for the recovery of specific real or personal property, with or without damages * * * an issue of fact may be tried by a jury, unless a jury is waived or a reference is ordered.” We have held a number of times that this statute is controlling.¹

Defendant did not claim the right to a jury under this statute. He claims that this is a law action because it is a will contest. He seems to concede that the action to recover the real estate is a suit in equity because it seeks to set aside a contract of sale and a conveyance and a will ón the ground of fraud, undue influence and incompetency. It is .hard to understand how a will contest is a law action hut.a suit to cancel a will before the testator’s death but after he has become incompetent is a suit in equity. This illustrates the maze of inconsistencies and borderline decisions required in applying the rule that the right of a jury trial is determined by whether the question is raised in an action at law or a suit in equity or whether the issues are legal or equitable.²

1 . Norback v. Board of Directors, 1934, 84 Utah 506, 37 P.2d 339; Petty v. Clark, 1942, 102 Utah 186, 129 P.2d 568; Same case on retrial, 1948, 113 Utah 205, 192 P.2d 589; Holland v. Wilson, 1958, 8 Utah 2d 11, 327 P.2d 250.

2 . See my dissenting opinion in Valley Mortuary v. Fairbanks, 1950, 119 Utah 204, 233, 225 P.2d 739, 754.