102 Ky. 160 | Ky. Ct. App. | 1897
delivered toe opinion of the court.
This proceeding was instituted under the provision of chapter 5 of the Code of Practice, title “Summary Proceedings.” The object of appellant was to obtain judgment against the appellee for one-half of a sum paid by appellant to W. B. Craddock upon the allegation that appellant and appellee were co-sureties for D. N. Cull to W. B. Craddock in the sum of $300, besides interest. The defense of appellee in substance was that he was security for appellant, and not his co-security.
The court below adjudged in favor of appellee, and from that judgment appellant has appealed to this court. It is insisted by appellant that the court below erred in excluding appellant’s deposition. He also insists that his reply to the answer of appellee was not controverted, and that the aver-ments of his reply should be taken as true. It will be seen from an examination of the pleadings that the averments of the reply were in fact but an afflimative statement of the facts denied in the answer.
The real question presented in the court below was whether appellee was the security of appellant or whether they were co-securities for Cull, and the pleadings, when properly considered, clearly present that issue.
Appellee’s contention is that if it is an equitable action that appellant’s deposition was properly excluded, and if it be not an equitable action, but a common-law suit, tried by the circuit judge without a jury, then, in that event, appellant, in order to obtain a review in this court, must have first filed grounds-.and moved for a new trial.
It does not appear that appellant offered or asked to be allowed to testify orally in court upon the trial of this action. It seems that the parties treated this as an action in equity, at least so far as the introduction of testimony was concerned, but we are of opinion that this proceeding is a common-law proceeding and that section 449 of the Code, which reads as follows: “A motion may be heard and determined upon or without written pleadings, and judgment shall be given accordingly to the law and the rules of equity,” means that the defendant, as well as the plaintiff, may present all legal and equitable claims and defenses on the motion or proceeding which may exist in the behalf of either, and! this being a proper proceeding at law, a motion for a new trial was necessary in order to properly present to this court the evidence introduced upon the trial.
So far as the pleadings are concerned the judgment of the
