By the Courts
Crozier, C. J.
Considering them in their natural order rather than in the order in which they have been presented by counsel, the first assignment of error would be, that the court below erred in rendering judgment in favor of Starks. The ground of this objection is, that because Starks was a defendant, he could not lawfully have judgment against his co-defendants, although a prior mortgagee of the same premises sought to be subjected by the plaintiff to the payment of his mortgage. The position is that Starks should have filed a cross-petition and caused a summons against his mortg’agors to be issued and served, so that the question is, whether he, being a prior creditor and mortgagee of the same persons and premises named and described in the petition, having been made a party defendant by the junior mortgagee and called upon to set up his claim, was entitled to judgment against his debtors who were in court with him, although appearing on the same side of the case ? It is not denied that if the answer of Starks had been called a cross-petition, and a. summons had issued thereon and served, but that he would have been entitled to the judgment. Were these omissions fatal?
The letter and spirit of the Code require that, so far as possible, all controversy concerning a particular article of property shall be concluded by one proceeding. It is made the duty of the court to require every body appearing to have an interest in the controversy, to be brought before it to the end that their rights shall be adjudicated, thereby putting an end to all controversy upon the subject, and preventing a multiplicity of suits. When all the parties are present, the power of the court to render such judgment for or against plaintiffs or defendants, as the facts may require under the pleadings, is plenary, and the case at bar illustrates the eminent propriety of the provisions of the Code under consideration. Here are two persons, each having claims against all the owners, and are mortgagees of different priorities of the same real estate. The one having the second lien desires to realize. He commences his proceeding, making the common debtors parties, and seeks to subject the property upon which both have liens, to the payment of his claim. He knows the other mortgagor’s claim must be first satisfied, and the first step in that direction is to be certain as to the amount of it, and the only proper way to do that is to get him befoi’e the court and require him to set out his claim, so that it may be ascertained by judicial inquiry. No question is made against the propriety of such a course, but the objection is, that the paper by which the claim is made manifest, is an answer of a defendant, and no provision of the Code authorizes a demurrer by a defendant to such answer, nor can it he controverted by way of reply by the debtor, he being also a defendant. And it is further objected that the debtor is not notified by the original summons, of the claim that is made in the co-defendant’s answer1. Hence, it is claimed, the necessity of a cross-petition and a summons thereon.
A fair construction of the Code will avoid all these imaginary difficulties. The old systems of practice, legal and equitable, are abolished, aud tbe Code furnishes the facilities, and was intended for accomplishing in the “ civil action ” all that could be arrived at by both the former systems. A decree or a judgment technically considered, or a compound of both, may now he rendered in one action. The petition of the plaintiff sets out his cause of action. The answer of the defendant, who is a mortgagee of the property mentioned in that petition, sets out his claim. The answer of the debtors discloses their defenses to each, and replies of the claimants admit or deny them! What difficulty then can there be in the business ? Yery manifestly, nothing but in names. Tbe answer of tbe defendant setting up bis claim is wbat formérly was a cross-petition in name, and in effect is still tbe same, although called au answer. The reply his co-defendants may make to it, is, in legal effect, an answer, although called by a different name. And all this is within the spirit of the Code, and a mere difference about names ought not to operate to defeat it.
As to tbe issuance and service of a summons, there can he no difficulty. When the original summons is served the defendants are in court for every purpose connected with the action, and the defendants served are bound to take notice of every step taken therein.
II. The mortgage of Starks included some personal property which was not covered by the mortgage of the plaintiff, and the decree directed it to be first sold and the proceeds applied in payment of Starks’ claim. Some objection has been made to the judgment on this account, but the court has been unable to see the force of it or how it could in any way work hardship to anybody, or why it was not the very thing that ought to have been done.
III. It is claimed that the proceeding to restore or establish the judgment, was in various respects irregular, and for divers reasons wholly void.
The plaintiffs in error Insist that the “ act relating to records and proceedings in the county of Douglas,” approved Feb. 9th, 1864, is unconstitutional and void, because it does not authorize the trial to be by jury. This presents the question whether this is a case within the meaning of the constitutional provision. (Bill of Rights, sec. 5.) “ The right of trial by jury shall be inviolate.” It is unnecessary to determine whether the investigation provided for in the act refen’ed to, is sti’ictly a “ trial.” Admitting for the purposes of this case, that it is a “trial,” it will not follow that the act is in contravention of the constitutional j>rovision. That provision does not require evei-y trial to be by jury. Nor does it contemplate that every issue, which, by the laws in foree at the adoption of the constitution of the state, was triable by jury, should remain iirevocably triable by that tribunal. Trial by jury is guaranteed only in those cases where that right existed at common law. Such is the meaning of the constitutional provision referred to, and in statutory proceedings, proceedings in chancery, &c., the legislature is fully competent to dispense with the jury.
It will not be seriously contended that the case at bar was a common law action. It was a proceeding to l-estoi’e the evidence of an existing judgment, not to recover a judgment for money or property. The effect of the action of the court might be to put the plaintiffs in a position where they would enforce the payment of money as against the defendants, but the order of the court establishing a judgment, is no more a judgment, strictly speaking, than would be an order for the entry of a judgment name pro tnme.
It is also claimed that the law is void because it authorizes the judge to rely upon, his own recollection in determining the facts upon which the order establishing the judgment is made to depend. This is undoubtedly the correct view of the subject. It would be the merest mockery of justice to allow the court to substitute what it might be pleased to call its recollection for the testimony of witnesses absolutely unimpeachable. Such would not be “ remedy by due course of law,” and the provision of the statute referred to is void.
But in the case at bar it is very manifest that the judge did not in fact rely upon his recollection. The order was made upon an admitted state of facts. There was no contradiction in the petition of the plaintiff and the answer of the defendants. Hence the plaintiff was not aggrieved by the action of the court.
The judgment of the District Court will be affirmed.
All the justices concurring.