DAVIS v. SECURITY FIRST NAT BANK OF LOS ANGELES (1934)

Appeal from judgment of dismissal entered upon motion of defendants, after refusal of plaintiff to proceed to trial without a jury.

The complaint in this cause alleges that plaintiff was induced to enter into two contracts for the purchase of lots located in a tract of land solely by fraudulent representations of defendants relative to value of the investment and improvements to be made in the tract; that plaintiff received nothing, rescinded the contracts, and demanded her money back. The prayer of the complaint is for damages in a sum representing the payments made by plaintiff on said lots, together with interest and costs.

After issue joined, the court denied plaintiff a trial by jury upon the ground that the cause of action was equitable and not legal. The question here is whether the court erred in so ruling and, for its determination, we are required to declare the nature of the action alleged in the complaint, whether legal or equitable.

This subject is discussed fully in the cases of Philpott v. Superior Court (Cal Sup.) 36 P.(2d) 635, and McCall v. Superior Court (Cal. Sup.) 36 P.(2d) 642, this day decided. Upon that authority we have no hesitancy in declaring that the facts here alleged state an action at law.

The judgment is reversed, with directions to the superior court to proceed to a trial of the case before a jury.

PRESTON, Justice.

We concur: WASTE, C. J.; LANGDON, J.; SEAWELL, J.; SPENCE, Justice pro tem. We dissent: SHENK, J.; CURTIS, J.