Adams

This action is prosecuted by the plaintiff to quiet title to a certain mining claim called the “Adams mine.” The cause was tried by the court without a jury, and written findings were filed in favor of the defendants. This appeal is from the judgment and from an order denying the plaintiff’s motion for a new trial.

Appellant’s first contention is that the court erred in denying plaintiff a trial by jury. The record shows that on the day of the trial no jury was in attendance, nor had any been demanded or ordered for the trial of said cause; that after the cause was called for trial and the parties respectively announced that they were ready, the plaintiff for the first time demanded that said cause be tried by. jury. The complaint was not verified, and the defendant’s answer denied each and every allegation of the complaint.

Rule, 28 of the superior court of Riverside county, in which said action was tried, is as follows: “A party demanding a jury trial shall deposit the jury fees with the clerk within five days after making such demand. Should a trial of an action by a jury continue for more than one day, the party demanding the jury shall deposit with the clerk, at or before…

I concur. I wish to say, however, that I do not think it is usual, in actions of this character, in the complaint to call upon the defendant to set out his interest, title, or claim. When such matter is contained in a complaint it is simply surplusage. The defendant is not called upon to set up his title, unless that be necessary under ordinary rules of pleading to enable him to introduce the evidence necessary to his defense.

I think in all cases in which the defendant is in possession actions of this character are actions at law, and the legislature cannot convert it into an equitable action by styling it an action to quiet title.