CRAWFORD v. HEMMINGWAY

CRAWFORD v. HEMMINGWAY
1926 OK 165
244 P. 198
116 Okla. 192
Case Number: 15890
Decided: 02/23/1926
Supreme Court of Oklahoma

CRAWFORD
v.
HEMMINGWAY.

Syllabus

¶0 1. Trial--Withdrawal of Case from Jury Where Only Equitable Issues Remain. In the trial of a case to recover upon a promissory note and to foreclose a mortgage securing same, and in which case other defendants are joined merely for the purpose of barring and foreclosing any rights which they may claim or assert in the premises adverse to the mortgagee, and the maker of the note and mortgage makes default, the issues remaining to be tried between plaintiff and an answering defendant who pleads fraud in the taking of the mortgage, notice to plaintiff of answering defendant's rights in the premises, and by cross-petition asks for cancellation of plaintiff's mortgage, are of purely equitable cognizance, and it is not error for the trial court to withdraw the case from the consideration of the jury at the close of all the evidence.
2. Appeal and Error -- Review of Equity Case--Sufficiency of Evidence. In such a case, where the court, after withdrawing the case from the jury, makes findings of fact which are supported by the evidence, and thereupon enters a decree which is in conformity to such findings and not clearly against the weight of the evidence, such decree of the trial court will be affirmed.

Warren K. Snyder, for plaintiff in error.
Porter H. Morgan, for defendant in error.

LOGSDON, C.

¶1 There are several assignments of error in the petition in error, but in the presentation and argument of the case in defendant's brief only one proposition is stated and argued, which is that the trial court committed reversible error in withdrawing the case from the consideration of the jury and in entering a decree in favor of the plaintiff and against the defendant. The first contention made under this proposition is that the case was properly triable to the jury, and that the court erred in sustaining the motion of the plaintiff to withdraw the case from the jury. Under the issues made between plaintiff and defendant it is considered that the case was one of purely equitable cognizance. Plaintiff sought no money judgment against the defendant Crawford. By his answer defendant substantially alleged that the mortgage sued upon was taken by plaintiff in fraud of the rights of the defendant and with full knowledge thereof, and that the same constituted a cloud upon the title of defendant in and to the premises, which he was entitled to have removed by cancellation of the mortgage. These issues are all properly determinable under the rules of equity, and the decisions of this court are uniform in holding that actions of this character, involving only equitable issues, are not triable to a jury, and that if a jury is impaneled to try the same, its verdict can only be advisory to the court, which must itself determine the facts and the legal principles applicable thereto. Maas v. Dunmyer, 21 Okla. 434, 96 P. 591; Hartsog v. Berry, 45 Okla. 277, 145 P. 328; Echols v. Reeburgh, 62 Okla. 67, 161 P. 1065; Moore v. Stanton, 77 Okla. 41, 186 P. 466; Mathews v. Sniggs, 75 Okla. 108, 182 P. 703; Katter v. Rodgers, 107 Okla. 116, 230 P. 500.