Swasey

The complaint herein is in the ordinary form of an action for the recovery of the possession of certain personal property. 'When the cause came on for the trial, the appellant demanded a jury, and her application was denied by the court, “ on the ground that the defense set up was an equitable defense, and should be tried by the court in the first instance.” The correctness of this ruling is the principal error presented on this appeal.

It has been stated by this court in many cases that when the defendant interposes equitable and legal defenses to the complaint, the proper rule of procedure for the court is to hear and dispose of the equitable defense before proceeding to try the issues of law. (Arguello v. Edinger, 10 Cal. 160 ; Estrada v. .Murphy, 19 Cal. 273 ; Weber v. Marshall, 19 Cal. 457 ; Lestrade v. Barth, 19 Cal. 671 ; Martin v. Zellerbach, 38 Cal. 319 ; 99 Am. Dec. 365 ; Fish v. Benson, 71 Cal. 434 .) By making an equitable defense in such action the defendant does not, however, lose any right which he would otherwise have to have the issues of law tried by a jury, nor does the court, by virtue of being called upon, under the above rule, to first hear and dispose of…