Opinion
File No. 59049
No equitable issues may 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 will be assigned for trial by the jury (Practice Book [1934] § 152). 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. Hence, where a complaint alleges causes of action both at law and in equity, and the plaintiff has claimed the case for trial before a jury and it has been assigned for trial before a jury, but no order of court has been made that the equitable issues be tried to the jury, the equitable issues are not properly assigned and may not legally be tried before a jury until such time as the court shall so order.
MEMORANDUM FILED NOVEMBER 14, 1939.
Alcorn, Mitchell Alcorn, of Hartford, for the Plaintiff.
Day, Berry Howard, of Hartford, for the Defendant.
Memorandum on motion to strike equitable issues from jury docket.
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. British America 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.