The opinion
On (Motion for Rehearing.
Appellee has filed a motion for rehearing herein, .among other things, contending that this Court was in error in reversing and rendering judgment, and that in any event we should have remanded the cause for a new trial.
We have concluded that inasmuch as this case is not fully developed, the ends of justice will be best served by a remanding in part of the cause rather than a rendition of judgment here. Jackson v. Hall, 147 Tex. 245 , 214 S.W.2d 458 ; Faulkner v. Reed, Tex.Com.App., 241 S.W. 1002 ; Long v. Long, 133 Tex. 96 , 125 S.W.2d 1034 .
Appellant has filed a second motion for rehearing asking that we re-tax the costs1 in the trial court. In view of the fact that the cause is to be remanded, we overrule this motion. The trial court can adjudge the costs in keeping with the , result of the new trial.
It is true that Art. 1, § 15, of our Constitution, Vernon’s Ann.St., only guarantees a trial by jury if one was provided for by common law, or by a statute in effect at the time of the adoption of our present Constitution in 1876. Texas Liquor Control Board v. Jones, Tex.Civ.App., 112 S.W.2d 227 ; Burckhalter v. Conyer, Tex.Com.App., 9 S.W.2d 1029 ; Pittman v. Byars, 51 Tex.Civ.App. 83 , 112 S.W. 102 ; Foster v. Foster, Tex.Civ.App., 230 S.W. 1064 . Art. 1, § 15, supra, provides, among other things, that “The right of trial by jury shall remain inviolate.” This provision and all similar provisions to be found in the Federal Constitution and in the Constitutions of other States, are uniformly held to guarantee a trial by jury in all cases where one was provided for by the common law, or by some statute in effect at the time of adopt *223 ing' such constitutional provisions. In 31 Am.Jur. 564, § 15, the rule is thus stated:
“The guaranties of the right of trial by jury as contained in the Federal Constitution and the constitution of the several states are generally construed as guaranties of the right as it existed under the common law, and in the absence of any explicit provision in regard to the character of causes in which the right may be insisted upon, these guaranties are deemed to apply only to causes and remedies which under the common-law system are cognizable in the law courts, and in which, by the common law, there is or would be a right to a jury trial. They do not as a general rule apply to suits in equity or causes cognizable only in courts of equity, to suits in admiralty, or to special or summary proceedings unknown to the common law and of substantially different character from actions at common law. In all such cases the legislature may extend or limit the right without violating the Constitution. The legislature may create new rights unknown to the common law, and provide for their determination without a jury; it may also organize new tribunals without common-law powers to adjudicate such new rights without a jury.”
However, the provisions of Art. 5, § 10, of our Constitution are much broader than those of Art. 1, § 15, insofar as the trial of causes in the district court is concerned. Art. 5, § 10, provides: “In the trial of all causes in the District Courts, the plaintiif or defendant shall, upon application made in open .court, have~~FlTe~~f’igEt~c)f trial by jury * * *. ” The meaning of this section was discussed by Chief Justice Gaines in Tolle v. Tolle, 101 Tex. 33 , 104 S.W. 1049, 1050 . He said: “Language cannot be more comprehensive than this. Hence, if a probate proceeding is properly styled a 'cause,’ this section undoubtedly gives a right of trial by jury. Bouvier defines a ‘cause’ as: ‘A suit or action; any question civil or criminal contested before a court of justice.’ The questions in this case are certainly questions contested before a court.”
There are a number of proceedings in the district courts, however, in which a trial by jury may be denied. Texas Liquor Control Board v. Jones, Tex.Civ.App., 112 S.W.2d 227 (Proceeding to cancel license to sell liquor.); Hammond v. Ashe, 103 Tex. 503 , 131 S.W. 539 (Primary election contest.); McCormick v. Jester, 53 Tex.Civ.App., 306 , 115 S.W. 278 (Contest of local option election.) ; Ex parte Giannatti, Tex.Civ.App., 189 S.W.2d 191 (Committing mentally ill persons to state hospital for period of ninety days.) ; Hickman v. Smith, Tex.Civ.App., 238 S.W.2d 838 (Adoption proceedings.); Burckhalter v. Conyer, Tex.Com.App., 9 S.W.2d 1029 ; Erwin v. Williams, Tex.Civ.App., 253 S.W.2d 303 (Habeas corpus for custody of child). However, none of the reasons or principle upon which these cases have been decided is involved here.
It is true that this suit was brought under the provisions of Art. 7345b, Vernon’s Ann.Civ.Stats., but the controversy here is not between the State and a party to the original tax foreclosure proceeding, but between parties at least one of whom was not a party to the original suit. Appellee Spencer claims only as an as-signee of appellant, Thomas J. Walsh, Jr. There is a disputed fact issue here between these two parties as to who owns the one-fifth interest of the excess fund in question, and they are entitled to have that fact issue decided by a jury. 35 C.J. 187, § 8*1; 50 C.J.S., Juries, § 70. The rule is even broader in Texas where a jury trial may even be had in an equity suit. Franzetti v. Franzetti, Tex.Civ.App., 120 S.W.2d 123 .
Accordingly, the judgment rendered by us on October 20, 1954, will be set aside and judgment now rendered as follows:
The judgment of the trial court will be reversed insofar as it awards the one-fifth *224 interest in the excess fund claimed by appellant to appellee, amounting to the sum of $761.34, and adjudging the cost of the trial court against appellant, and this part of the cause is remanded for a new trial. The judgment in all other respects is affirmed.
The Comptroller of Public Accounts of Texas will therefore issue his warrant on the State Treasury against such trust funds, now in possession of the State Treasurer, for the payment of $3,045.35 to appellee, Emory M. Spencer; and the State Treasurer shall continue to hold the balance of such trust fund, amounting to $761.34, until he receives further orders from the court. The cost of this appeal is taxed against appellee.
Affirmed in part, reversed and remanded in part