At common law, personal actions are for the recovery of movable property or for damages or other forms of redress for breach of contract or other kind of injury other than those affecting interests in land. Mathews v. Sniggs, 75 Okla. 108, 182 P. 703, 708 [1919]. The terms of 12 O.S.Supp. 1984 § 2002[ 12-2002] provide:

More succinctly, "[a]t common law, personal actions were those for the recovery of movable property, damages, or other forms of redress, as opposed to real actions which were for the recovery of lands, tenements, hereditaments, or for the protection of real property interests." State ex rel. Schones v. Town of Canute, 858 P.2d 436, 440 n. 3 (Okla. 1993) (Opala, J., dissenting) ( citing Mathews v. Sniggs, 75 Okla. 108, 182 P. 703, 708 (1919) (emphasis provided and added)). See also 1A C.J.S. Actions § 66 (1985) ("Mixed actions, as the name implies, are such as appertain in some degree to both real and personal actions, and therefore are reducible to neither of them; such actions seek not only a specific recovery of lands, tenements, or hereditaments, but also a recovery of damages for an injury sustained."

At common law, personal actions were those for the recovery of movable property, damages, or other forms of redress, as opposed to real actions which were for the recovery of lands, tenements, hereditaments, or for the protection of real property interests. Mathews v. Sniggs, 75 Okla. 108, 182 P. 703, 708 (1919). See infra note 41.

"We think that where the gravamen of the action pleaded is one which would have been for the conscientious determination of the chancellor under rules of equity, before the general adoption of Codes, the cause is one essentially in equity, and that though its form may be in ejectment, yet where the law feature, the possession, follows merely as an incident to the determination of the equitable issue on which it rests, it is not one for the recovery of specific real estate." In the case of Mathews et al. v. Sniggs et al., 75 Okla. 108, 182 P. 703, plaintiffs sought to recover possession of certain real estate. Defendants, in addition to answering the petition, filed their cross-petitions, asked for a decree quieting title in them, and for an injunction against plaintiffs. At the trial plaintiffs demanded a jury, which was by the court denied.

Before the enactment of the present Pleading Code (12 O.S.Supp. 1984 § 2001[ 12-2001] et seq.), Oklahoma distinguished between a counterclaim and a demand for setoff (also known as a cross-demand, Board of Education of Town of Ringling v. State, 172 Okla. 437, 46 P.2d 325, 327 (1935)). Counterclaims secured the defendant "full relief," Mathews v. Sniggs, 75 Okla. 108, 182 P. 703, 706 (1919), and had to arise out of the transaction or occurrence upon which the plaintiff's claim is based, Perrault v. Holland, Okla., 360 P.2d 240, 243 (1961). Setoff, which need not have been related to the basis of the plaintiff's claim, could be asserted as a defense, counterclaim or cross-claim based upon any contract with the opposing party, Brown v. Holden, supra note 3 at 533.

1969) cert. den'd 396 U.S. 25, 90 S.Ct. 198, 24 L.Ed.2d 145 (1969); Hamil v. Walker, 604 P.2d 377-78 (Okla. 1979); Mathews v. Sniggs, 75 Okla. 108, 182 P. 703, 709 (1919); Keeter v. State, 82 Okla. 89, 198 P. 866, 867, 869, 17 A.L.R. 557 (1921).Seron v. Carlson, 280 Ill. App. 396, 398 (1935).

Once the probate homestead attaches, the right of the survivor to occupy the homestead is superior to the rights of coheirs to their property interest, and their interest is suspended until the probate homestead is terminated. That termination may occur in one of several ways. Being a personal and individual right, it may be waived, forfeited or abandoned, or lost by death if there are no minor children. In re Gardner's Estate, supra; In re Carother's Estate, 196 Okla. 640, 167 P.2d 899 (1946); In re Irwin's Estate, 192 Okla. 334, 136 P.2d 940 (1943); Mathews v. Sniggs, 75 Okla. 108, 182 P. 703 (1919). The policy considerations served by the constitutional homestead are distinct from those of the probate homestead.

We do not mean to imply, of course, that all contested debts allegedly owed by third parties to judgment debtors are necessarily triable as of right by a jury upon garnishment by judgment creditors. The right to trial by jury has long been held applicable only to actions "at law," Keeter v. State, 82 Okla. 89, 198 P. 866 (1921); Mathews v. Sniggs, 75 Okla. 108, 182 P. 703 (1919), rather than to such things as "equity" debts (owing, for example, by former spouses, trustees, or the like). Since in such a latter case the trial of an "equity" debt between the judgment debtor himself and the third party would not be by jury, then also would such a debt not be tried by a jury when pursued by a judgment creditor on garnishment.

The claim of Mrs. Johnston for liquidated damages based upon an alleged breach of contract and of Mr. Smith for his brokerage commission also rest in the common law. See Oklahoma City Undertaking Co. v. Greer, 117 Okla. 124, 246 P. 410; Mathews v. Sniggs, 75 Okla. 108, 182 P. 703. Therefore if this were an action strictly among the claimants to the deposit, questions of fact would have to be resolved by a jury, unless waived. Okla. Const. Art. 2 § 19.

23 O.S. 1951 § 34[ 23-34]; 15 O.S. 1951 § 233[ 15-233]; Doughty v. Laubach, 172 Okla. 42, 44 P.2d 105; Stafford v. McDougal, 171 Okla. 106, 42 P.2d 520; Ivey v. Stewart, Okla., 295 P.2d 1056. In an action for recovery upon a negotiable promissory note, if the defendant admits the execution of the note and the amount due thereon, and by answer and counterclaim tenders the consideration received, seeks to void (rescind) and cancel the contract, pursuant to which the note was given, on the ground of fraud, and prays restitution from plaintiff of money (or property) previously parted with under such contract, the answer and counterclaim so framed transforms the character of the cause into one of equitable cognizance. Stafford v. McDougal, supra; Moore v. Stanton, 77 Okla. 41, 186 P. 466; Mathews v. Sniggs, 75 Okla. 108, 182 P. 703. See also Dean v. McMichael, 168 Okla. 536, 33 P.2d 1086; Chiles v. De Lana, 187 Okla. 415, 103 P.2d 63.