H. W. TAYLOR, Appellant, v. C. D. FORD, Respondent, 92 Cal. 419

McFarland, J. This action was brought under

section 1050 of the Code of Civil Procedure, tcv have determined an adverse claim which defendant asserted against plaintiff upon a certain promissory note for $8,509.85. Defendant filed a pleading styled “ an answer and cross-complaint,” which was in form and substance a complaint upon said promissory note, with a prayer for judgment against plaintiff for the amount due thereon. Plaintiff answered, setting up want of consideration and other defenses. At the proper time, plaintiff demanded a jury.

The court denied this demand, and proceeded to try the case without a jury, and subsequently rendered judgment against plaintiff for the amount which the court found to be due upon the note. Plaintiff appeals. In refusing the demand for a jury, the court erred. The issues raised by the cross-complaint and the answer thereto were triable in the ordinary course of law, and by a jury, unless waived. It was a common-law action upon a promissory note, with a defense of want of consideration; and the case comes clearly within the principles stated in Donahue v. Meister, 88 Cal. 121.

The judgment and order are reversed, and the cause is remanded for a new trial. De Haven, J., Garoutte, J., Sharpstein, J., Harrison, J., and Beatty, C. J., concurred. Rehearing denied.