Opinion
January 11, 1950.
RICHARDS, C.J., TERRY, CAREY, and PEARSON, JJ., sitting.
APPEAL from Court of Chancery, New Castle County.
The complainant below, Leander L. Saunders, filed his bill below praying
(1) For an order restraining the respondent, Alice M. Saunders, his daughter, from entering certain safe deposit boxes (Nos. 792 and 2837) located in the Wilmington Trust Company, Wilmington, and from assigning, removing or in any way disposing of the contents thereof.
(2) For an order compelling the respondent, Alice M. Saunders, to return to the complainant certain valuables belonging to him and alleged to have been wrongfully removed by her from one of the boxes aforesaid.
(3) For an order enjoining the respondent, the Wilmington Trust Company, custodian of said boxes, from permitting the respondent, Alice M. Saunders, to enter or have access to said boxes pending the disposition of this cause.
The complainant alleges that for many years prior to the death of his wife they maintained jointly a safe deposit box, No. 792, in the Wilmington Trust Company; that after the death of his wife in 1944 he gave to his daughter, Alice M. Saunders, one of the respondents, access to the box, and that sometime unknown to him between the year 1944 and the filing of the bill below on October 8, 1947, she removed certain valuables belonging to the complainant from his safe deposit box, No. 792, and transferred them to another box, No. 2837, in the Wilmington Trust Company, to which she alone had access; that the valuables as indicated consist of five thousand dollars in cash, two thousand dollars in War Savings Bonds, twenty-five shares of American Telephone and Telegraph Company stock and fifty dollars in gold coins.
It is further alleged that the gold coins had been collected by the complainant's wife during her lifetime and given to the complainant prior to her death; that the coins are cherished keepsakes, and, as such, have a unique and sentimental value to him which cannot be measured in terms of money.
The Chancellor granted the restraining order as prayed for and simultaneously ordered the issuance of a rule directed to both respondents to appear before him at a subsequent date and show cause, if any, why a preliminary injunction should not issue (1) restraining the respondent, Alice M. Saunders, from entering the boxes aforesaid and from assigning, removing or in any way disposing of the contents thereof, and (2) restraining the respondent, the Wilmington Trust Company, during the pendency of this action, from permitting the respondent, Alice M. Saunders, to enter or have any access to the said boxes unless upon his order.
The Chancellor designated certain dates and ordered the parties to file their affidavits on or before the expiration thereof.
In her answer to the bill the respondent, Alice M. Saunders, admits that during the year 1944 the complainant gave to her access to his safe deposit box No. 792, located in the Wilmington Trust Company and containing all of the items alleged in the complaint. She further admits of having removed during 1944 the items as alleged from the complainant's box, No. 792, and having placed them in box No. 2837, which she leased from the Wilmington Trust Company and to which she alone has access. She avers, however, that all of the items taken by her from the complainant's box, No. 792, are her property, but that she stands ready and willing to deliver the gold coins in the amount of fifty dollars to the complainant, since she can understand why he would want to keep them.
Alice M. Saunders filed on the 21st day of October, 1947, her affidavit in opposition to the granting of a preliminary injunction, the substance thereof being that she has worked for the past twenty-eight years; that during the first fifteen years she delivered all of her earnings to the complainant for safe-keeping; that commencing in the year 1934 she paid board to the complainant and delivered to him certain of her earnings to invest and keep for her; that this arrangement continued from 1934 until 1943; that from 1943 until 1945 she was in the service of the United States as a WAC, during which period she delivered to the complainant certain of her earnings to invest and keep for her; that all of the cash in the complainant's safe deposit box, No. 792, and later transferred to her safe deposit box No. 2837, is her sole property, and accounted for as indicated; that the two thousand dollars in War Savings Bonds were bought by the complainant out of his own savings and subsequently given to her as a gift; that the twenty-five shares of American Telephone and Telegraph Company stock were likewise a gift to her from the complainant; that the fifty dollars in gold coins is her sole property.
The complainant filed his affidavit, the substance thereof being that the sum of five thousand dollars as mentioned in the respondent's affidavit and in the bill of complaint is and always has been his property, none of which represents in any way money belonging to the respondent; that the only funds belonging to the respondent that ever came into his possession were the sum of one hundred dollars, which was paid to him by the Viscose Company where the respondent had been employed prior to her entry into the service as a WAC; that a part of this sum was used to pay various small bills of the respondent and the balance was delivered to her in cash. He denies ever making gifts to the respondent of the two thousand dollars in War Savings Bonds or the twenty-five shares of American Telephone and Telegraph Company stock, and says that her statements contained in her affidavit and answer in reference thereto are false and untrue; that the gold coins in the amount of fifty dollars are his sole and exclusive property.
It was suggested to the Chancellor, since the title to the gold coins is no longer in dispute, and, since the determination of the title to the remaining personal property would be predicated entirely on the oral testimony of the complainant and respondent, Alice M. Saunders, that he must, under the provisions of Section 4367 of the Revised Code of 1935, frame an issue and direct the same to be tried by a jury at the bar of the Superior Court. Such a motion was duly filed.
The complainant opposed the motion, contending that in the present case the Chancellor, under the provisions of Section 4367, may in the exercise of his discretion refuse to frame an issue and refer the same to the Superior Court for determination.
Section 4367 provides
"The Court of Chancery shall have power to hear and decree all matters and causes in equity, and the proceedings shall be, as heretofore by bill, answer, and other proper pleadings; and the Chancellor shall have power to issue subpoenas and all other process to compel defendants to answer suits there, to award commissions for taking answers and examining witnesses, to grant injunctions for staying suits at law, and to prevent waste, as there may be occasion, according to the course of Chancery practice heretofore, with power to make orders and award process, and do all things necessary to bring causes to hearing; and to enforce obedience to decrees in equity by imprisonment of the body, or sequestration of lands.
"Provided, that the Chancellor shall not have power to determine any matter wherein sufficient remedy may be had by common law, or statute, before any other Court, or jurisdiction, of this State; but that where matters, determinable at common law, shall be brought before him in equity, he shall remit the parties to the common law; and when matters of fact, proper to be tried by a Jury, shall arise in any cause depending in Chancery, the Chancellor shall order such facts to trial by issues at the bar of the Superior Court."
The Chancellor, without filing an opinion, entered the following order:
"And now to wit, this Fifteenth day of September, A.D. 1948, the defendant's motion for the framing of an issue to a Jury in the above-entitled cause having come on to be heard and having been argued by the Attorneys for the parties and maturely considered by the Chancellor,
"It is ordered by the Chancellor, that the defendant's motion that issues be framed for a Jury in the above-entitled cause be and the same hereby is denied."
It is from the foregoing order that the respondent, Alice M. Saunders, has appealed.
In her argument before us she insists that in the light of the facts as presented by the affidavits and the bill and answer the Chancellor was compelled to frame an issue to be tried by a jury at law, in accordance with the strict provisions as indicated under Section 4367. She suggests that we construe the word "shall" as the same appears in the last clause of the section as indicating a mandate out of which no discretion whatsoever may be found to exist.
John S. Walker, for appellants.
Clement C. Wood, of Hering, Morris, James Hitchens, for appellee.
Lord Chancellor Eldon in the case of Hampson v. Hampson, English Reports, Full Reprint 35 Chancery Book, 15, 395, 3 V. B. 42, stated the early English law to be
"Courts of equity have an original jurisdiction, which, I agree, must be exercised to a sound discretion; to try questions of fact without the intervention of a jury; and which aid is sought, according to the common expression, for the purpose of informing the conscience of the Court. I agree, that a mistake in refusing to send the cause to a jury is a just ground of appeal if the Court of Appeal should think, that the contrary decision would have been a sounder exercise of discretion: but it is a competent exercise of the authority and duty of the Court in every case, and throughout every case, and in every stage, to determine according to its discretion, whether it does, or not, want that assistance."
Such was unquestionably the law in this State until 1792, when the following statute was enacted:
Chapter 54, Laws of Delaware, 1792, Volume 1 — Sec. 25:
"Provided, also, that nothing herein contained shall give the said Justices any power or authority to hear, decree or determine in equity, any matter, cause or thing, wherein sufficient remedy may be had in any other Court or before any other Magistrate or Judicature in this Government, either by the rules of the common law or according to the tenure and directions of the laws of this government, but that when matters determinable at common law shall be brought before them in equity they shall refer or remit the parties to the common law; and when matters of fact shall happen to arise upon their examination or hearing of the matters and causes to be heard and determined in said Court, then, and in every such case, they shall order the matter of fact to issue and trial at the Court of Common Pleas for the County where the fact ariseth, before they proceed to sentence or decree in the said Court of Equity."
See also Page 103 of the Code of 1829.
Under this statute we find the case of Waters, et al., v. Comly, 3 Har., Del., 117, decided between 1839 and 1843 by the Court of Errors and Appeals, where the Chancellor below refused to order an issue to be tried by a jury at law. The Court of Errors and Appeals, in construing the second clause of Section 25, stated:
"As to the refusal of the Chancellor to order certain proposed issues of fact to be tried at the bar of the Superior Court, we are clearly of the opinion, that the provisions of the act of assembly which directs it to be done, must be understood as referring only to issues of fact which involve the merits of the cause, and are material to the decision of the cause, which we do not conceive to have been the character of those proposed in the present instance."Section 25, aforesaid, was amended in 1852, Chapter 95, Paragraphs 1932 and 1933 of the Code of 1852. The precise language of Paragraphs 1932 and 1933, as indicated, appears under Section 4367 in our present Code 1935. The first reported case involving Paragraph 1933 of the Code of 1852, now the second clause of Paragraph 2 of Section 4367 of the Code of 1935, was before Chancellor Bates, and in reference thereto he stated in the case of Sparks, et al., v. President, etc., of Farmers Bank, 3 Del. Ch. 225, that the granting of an application to direct an issue to be tried by a jury is a matter to be determined by the sound discretion of the court.
Whatever import may be given to the court's language in the Water's case, supra, decided under the statute of 1792, it must be said that our Chancellors, since the Bates decision in the Sparks case, supra, under the statute of 1852, Section 4367, Code of 1935, have consistently indicated in the very few cases presented that the granting of an application to direct an issue to be tried by a jury at law is not a matter of right, but falls completely within the sound discretion of the court. Killen v. Purdy, 11 Del. Ch. 66, 67, 95 A. 908, on appeal 11 Del. Ch. 396, 402, 99 A. 537; Mackenzie Oil Co. v. Omar Oil Gas Co., 14 Del. Ch. 36, 120 A. 852; Aetna Casualty Surety Co. v. Mayor Council of Wilmington, 18 Del. Ch. 324, 160 A. 749; Episcopo v. Olivere, 15 Del. Ch. 290, 136 A. 885.
The respondent relies upon the following cases in support of her contention: Waters v. Comly, 3 Har. 117; Episcopo v. Olivere, 15 Del. Ch. 270, 136 A. 885; Hook v. Hook, 126 Va. 249, 101 S.E. 223; Wilson v. Howland, 84 N.J. Eq. 14 , 93 A. 688; Hayes v. Smith, 104 N.J. Eq. 146 , 144 A. 636, 638. Of the cases cited, the only case lending possible support to the respondent's position is the Waters case, supra, decided under our statute of 1792. The Episcopo case indicates that the question falls within the sound discretion of the Chancellor. The remaining cases from Virginia and New Jersey deal mainly with questions concerning the title to real estate, which issues, of course, equity will not determine. Compare Steiner v. Stein, 2 N.J. 367 , 66 A.2d 719.
If a cause is properly in the Court of Chancery, we find no right to exist in either party to the litigation to say that a fact necessary to be determined in the course of the proceeding, although it may be said to be a subject for cognizance in a court of law before a jury, cannot also be determined in equity without the intervention of a jury.
Once jurisdiction of the subject matter has been properly ascertained equity will proceed to determine all facts essential to a decree, except the determination of facts necessary to adjudicate the legal title to land. To construe the second clause of Paragraph 2 of Section 4367 otherwise would be to render it an infringement upon the inherent jurisdiction of the court of equity.
No question having been raised concerning the jurisdiction of the court below over the subject matter, we conclude (1) that the respondent is not entitled as a matter of right to a trial by jury at the bar of the Superior Court with respect to the issues encompassed within her demand, and (2) that the refusal of the Chancellor to frame an issue to be tried by a jury was not arbitrary, but rather the exercise of a sound judicial discretion under the circumstances presented.
The decree as entered below is affirmed.
An order will be entered in accordance with this opinion.
PEARSON, J., did not participate in this opinion, because of his resignation as Associate Judge, effective December 22, 1949.