144 Ky. 503 | Ky. Ct. App. | 1911
Opinion op the Court by
— Affirming.
On September 4th, 1906, one Howard Whiteker executed and delivered to aupellee. N. N. Simpson, a note for $77.25, payable March 4th, 1907, and at tbe same time executed, acknowledged and delivered to Simpsori
Practically the only error assigned is the failure of the trial court to transfer the case to the ordinary docket. In this connection it is argued that the question) whether or not appellee consented to the purchase of the tobacco by Blackburn and agreed to look to Whiteker, for his money presented simply an issue of fact, and) that appellant was, therefore, entitled, as a matter of right, to have this issue tried by a jury. Had appellant made his motion when he filed his answer, or within a! reasonable time thereafter, his contention would be' sound. Prom the above statement, however, it will be seen that his motion to transfer was not made until, about a year and nine months after his answer was filed, and then after two default judgments had been set aside by' consent and one by order of the trial court. Although the burden of proof was upon blhn, he did not take his proof up until the time the last judgment was rendered. Although a party may be entitled, as a matter, of right, to have an issue of fact tried by a jury, he ean| obtain this right only by motion made within proper time. Whether or not there hasi been an unreasonable delay in making a motion to transfer is a question to be decided by the trial court in the exercise of a sound discretion. (Chenault v. Eastern Kentucky Timber & Lumber Co., 26 Ky. Law Rep. 1078.) The trial court in this instance did not abuse its discretion. As appellant, because of his unreasonable delay in making his motion was not entitled to have the ease transferred, and as the burden of proof was upon him and he had, taken no proof although he had ample opportunity to) do so, it follows that the judgment against him was) proper.
Judgment affirmed.