Parker v. McGinty , 77 Colo. 458 ( 1925 )

We granted a rehearing en banc on the ground that a constitutional question was involved. The plaintiffs in error claimed that they were entitled to trial by jury on the question of their liability for the payment of the mortgage debt, because, having parted with their interest in the mortgaged property, they were no longer necessary parties to a foreclosure of the mortgage and that the only question before the court as to them was, therefore, one of law only, not equity, i. e. whether they were personally liable for the payment of that debt, and that in such case they were constitutionally entitled to a jury. No constitutional question is involved. The federal Constitution, amendment 7, has no application to a state court.Twitchell v. Commonwealth, 7 Wall. 321, 19 L. Ed. 223; Hustonv. Wadsworth, 5 Colo. 213, 216. The Colorado Constitution, article II, section 23, "secures the right of trial by jury in criminal cases, but imposes no restriction upon the legislature in respect to the trial of civil causes."Huston v. Wadsworth, supra; the case therefore should not have gone to banc.

As to whether the plaintiffs in error were entitled to a jury under the code or the common law; an examination of the pleadings shows that there was no issue for a jury.

The complaint alleges that they assumed the debt by the following clause in the deed from the company to them: "except a certain mortgage for $5,000 made by the party of the first part to Frank McGinty, * * * which mortgage the party of the second part assumes." While plaintiffs in error make a general denial of matters not admitted, and specifically deny that they promised to pay the debt, yet they expressly admit that that clause was in the deed. They seek to avoid it, as was stated in the original opinion, by saying that they did not know it was there. This raises no issue for a jury. The question is whether they can be permitted to say that they did not know it. That question is for the court and the answer is that they cannot. Jaeger v. Whitsett,3 Colo. 105; Askey v. Fidelity Ass'n., 37 Colo. 432, 439,86 P. 1035.

They also allege that the clause was inserted "by mutual mistake, accident, inadvertence or fraud." Without saying whether this matter is well pleaded, it amounts only to an equitable ground to reform the deed and is not a matter for a jury.

We adhere to the original opinion.