Story v. Hartford-Connecticut Trust Co.

The action is to recover for services alleged to have been rendered and for the specific performance of the contract which is alleged to have existed and not been performed. There are thus two causes alleged, to wit: one at law and the other in equity. The plaintiff has claimed the case for trial before a jury and it has been assigned for trial before a jury.

The motion while perhaps incorrectly labeled is apparently intended as a motion for an order striking the equitable issues of the above entitled case from the jury assignment list.

Section 152 of the Practice Book (1934) provides that: "No equitable issues shall be tried to the jury except upon order of the court. A case presenting issues both in equity and law may be claimed for the jury list, but, unless the court otherwise orders, only the issues at law shall be assigned for trial by the jury."

The mere claiming for a jury trial of a case involving equitable issues is not the equivalent of an order of court that the equitable issues be tried to the jury. Bisnovich vs. BritishAmerica Assurance Co., 100 Conn. 240, 248.

So far as appears in the present case no such order has been made and consequently even though the case has been assigned for trial the equitable issues thereof are not properly assigned and may not legally be tried before a jury until such time as the court shall so order.

There is in the file a motion that such order be made but as the same is not now before the court for action it cannot at this time be passed upon. As a decision upon that motion will undoubtedly determine the ultimate course to be followed in the trial of the equitable issues the court will defer ruling upon the present motion and suggests that the motion above referred to be submitted for action on the earliest possible date.