
    Horace Brockway, appellant, v. Henry Reynolds et al., appellees.
    Filed December 5, 1908.
    No. 15,316.
    Jury, Right to Trial by. In an action for the conversion of the proceeds of a bank check, when the conversion is denied, it is error to refuse a jury trial.
    Appeal from the district court for Hawes county: William H. Westover, Judge.
    
      Reversed.
    
    
      E. H. Whelan and J. E. Porter, for appellant.
    
      A. W. Orites and E. ]}[. Slattery, contra.
    
   Epperson, O.

Plaintiff’s action is for the recovery of $125, which he alleges was obtained by the defendants upon a check payable to the defendant Pitman and unlawfully converted by the defendants. Pitman filed an answer and cross-petition, claiming $100, and defendants Reynolds and Slattery filed a counterclaim for $25. They also brought into court $100, which defendant Pitman had demanded of them, and asked that the same be disposed of as the equity of the case may require. The prayer of their answer is that they be allowed to retain the whole $125. On the joint motion of defendants the court withdrew the case from the consideration of the jury, and entertained it as in equity.

The court erred in refusing plaintiff a jury trial, and we recommend that the judgment be reversed and this cause remanded for further proceedings in accordance with law.

Dueeib and Good, GO., concur.

By the Court: For the reasons given in the foregoing opinion, this cause is reversed and remanded to the lower court for proceedings in accordance with law.

Reversed.  