Gant v. Crandall

KANE, J.

This was an action upon a promissory note and to foreclose a mortgage given to secure payment thereof, commenced by the defendant in error, plaintiff below,' against the plaintiffs in error, defendants below. The petition was in the usual form and stated facts sufficient to constitute a cause of action. The answer, among other defenses, contained (1) a certified general denial, and (2) a verified denial of the execution of the note and mortgage.

Hereafter, for convenience, the parties will be designated “plaintiff” and “defendants” respectively, as they appeared in the trial court.

Upon the trial of the cause the court below entered judgment for the plaintiff as prayed for, to reverse which this proceeding in error was commenced.

The only assignment of error we deem it necessary to notice is the one which questions the action of the trial court in denying the defendants’ request for a trial by jury. This we think was error. Counsel for the plaintiff admits that the action was one wherein either party was entitled to demand a trial by jury as a matter of right, but he says: “The motion for a new trial, as filed by plaintiff in error, does not raise the question as to whether or not the court erred in refusing to submit the issues to the jury.”

We are unable to agree with this contention. The grounds for a new trial stated in the motion are as follows: (1) That the decision of the court in said cause is contrary to the evidence. (2) That the decision of the court is contrary to the law. (3) That the decision of the court is contrary to the law and the evidence.

In our judgment the decision of the trial court was contrary to law and the error complained of was sufficiently presented to the trial court for correction by either the second or third ground for a new trial.

For the reasons stated, the judgment of the court below is reversed and remanded for a new trial.

SHARP, HARRISON, JOHNSON, and MuNEILL, JJ., concur.