Majority
p. 252[No. 14646. In Bank. February 4, 1892.] PATRICK DONOHUE et ux., Petitioners, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.
Headnote
Trial by Jury—Mandamus — Province oí Trial Court — Remedy by Appeal. — The question as to whether or not the parties to an action are entitled to a trial by jury is a question of law which the trial court has jurisdiction to hear and determine, for error in the determination of which the party aggrieved has a sufficient remedy by appeal, and a writ of mandate will not be issued to compel the trial court to grant a jury trial.Petition to the Supreme Court for a writ of mandate to the Superior Court of the city and county of San Francisco, and John Hunt, judge thereof. The facts are stated in the opinion of the court.
Michael Mullany, for Petitioners.
Petitioners aver that they are defendants in an action pending in th.e court of respondents, in which one Hinkel is plaintiff; that said action is an action to quiet title to certain described lands; that petitioners have answered in said action, setting up certain defenses; that petitioners have demanded a jury trial of
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said action; that their demand has been refused, and that the respondents are about to try said action without a jury. Wherefore petitioners pray for a writ of mandate, commanding respondents to comply with petitioners’ demand for a jury, and “ not to undertake to try or to set said action for trial without a jury.”
Whether or not the petitioners should have a jury trial of said action is a question of law which the superior court has jurisdiction to hear and determine; and if any error has been, or shall be, committed in determining that question, the petitioners have a sufficient remedy in the ordinary course of law by appeal.
■ The prayer of petitioners is denied, and the proceeding dismissed.