Page:Dakota Territory Reports.djvu/45

 table relief, the court should have dismissed the petition or sent the issues to a jury for trial. (6 Wallace, 134; 45 Ills., 350; 42 Ills,, 471; 40 Ills., 182-8; Willard's Eq., 308, etc.) It cannot be claimed that a jury trial was waived, for such was not the fact, as shown by the record, and the only mode of such waiver is pointed out by the code. (Code of 1862, p. 93, § 276) As the case stood upon the pleadings and was tried, it was not proper even to demand a jury trial. (Code of 1862, p. 90, §§ 260 and 261.) When the court found only damages were recoverable, which was strictly and only within the province of a court of law, it should have sent the issues to a jury for trial on its own motion. Else a plaintiff has only to allege something which, uncontradicted, would show a right to equitable relief, though having no foundation in point of fact, to deprive a defendant in every case of his constitutional right of trial by jury. (35 Ills., 375; 33 Ills., 227; 43 Ills., 280; 6 Nevada, 145.) This case having been tried by the court below, upon written evidence alone, and such evidence being in the record, and all before this court, this court will look into such evidence (it being an equitable case upon the pleadings,) to ascertain if the court below has arrived at a correct conclusion upon the facts as well as upon the law, and will try the case upon the record as it stands, and no exceptions were necessary or in fact proper. (42 Missouri, 551; 4 Minn., 282; 15 Wisconsin 265; 40 Ills., 99, 100 and 101; 23 Wisconsin, 334; 3 Nevada, 131; 16 Gratten, 355; 2 Iowa, 20 and 496; 13 Iowa, 40; 16 Wisconsin, 547; 23 Wisconsin, 343.) The preponderance of testimony is clearly with the defendants. At most in regard to the first or preliminary conversation on the 10th of October, Fraley and son are flatly contradicted by Bentley and Andrews, and the last named are corroborated by Ruffner and Bounds, and all of them swear Burleigh was not present; and, indeed, he only states he heard a preliminary conversation, and not the concluding one.

Then Bentley and Andrews both testify to the concluding agreement on the 4th of November, when the deed was passed and the money paid, and they are as to that wholly uncontradicted, and borne out by the deed upon its face.