Black v. Gardner

The majority opinion does violence to constitutional law precedent in this state concerning equity jurisdiction.

Although admittedly grounded in equity, by agreement this case was treated as though trial by jury was a matter of right pursuant to SDCL 15-6-39(c), which reads:

In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury, or the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right, (emphasis supplied).'

That…