MISTY MANAGEMENT CORPORATION and TRI-AVIATION CORPORATION; and the STATE OF NEVADA Upon the Relation of Misty Management Corporation and Tri-Aviation Corporation, Petitioners, v. THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the County of Ormsby, HONORABLE RICHARD L. WATERS, Jr., the Judge Thereof, and THOMAS DANIEL WYATT, Respondents
Misty Management Corp. v. First Judicial District Court
Zenoff, J., concurs.
MISTY MANAGEMENT CORPORATION and TRI-AVIATION CORPORATION; and the STATE OF NEVADA Upon the Relation of Misty Management Corporation and Tri-Aviation Corporation, Petitioners, v. THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the County of Ormsby, HONORABLE RICHARD L. WATERS, Jr., the Judge Thereof, and THOMAS DANIEL WYATT, Respondents.
MISTY MANAGEMENT CORPORATION and TRI-AVIATION CORPORATION; and the STATE OF NEVADA Upon the Relation of Misty Management Corporation and Tri-Aviation Corporation, Petitioners, v. THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the County of Ormsby, HONORABLE RICHARD L. WATERS, Jr., the Judge Thereof, and THOMAS DANIEL WYATT, Respondents.
No. 5282
May 29, 1967
428 P.2d 196
E. M. Gunderson, of Las Vegas, and Ball, Hunt, Hart and Brown and George E. McGill, of Long Beach, California, for Petitioners.
Martillaro and Bucchianeri and Daniel R. Walsh, of Carson City, for Respondents.
OPINION ON PETITION FOR REHEARING
By the Court,
Thompson, C. J.:
By petition for rehearing, Wyatt re-asserts the contention that his constitutional right to a jury trial was violated when the court set aside the jury verdict and entered judgment n.o.v. We rejected that contention. See, Misty Management v. District Court, 83 Nev. 180, 426 P.2d 728 (1967). We again reject it for the reasons initially expressed, but wish to add a further comment on the point.
The action commenced by Wyatt against Misty Management was primarily an equitable proceeding — a suit to cancel a deed for fraud. Consequently, Wyatt could not demand a jury trial as a matter of right. A jury was allowed, and its verdict was merely advisory to the court. Musgrave v. Casey, 68 Nev. 471, 235 P.2d 729 (1951); Johnston v. DeLay, 63 Nev. 1, 158 P.2d 547 (1945).
Rehearing denied.
Zenoff, J., concurs.