218 S.W.2d 960 | Ky. Ct. App. | 1949
Reversing.
This is an appeal from a judgment entered on appellant's petition for further relief entered subsequent to the filing of the mandate in Gaidry's Trustees et al. v. Cooke,
Appellant urges reversal on three grounds: (1) The Court erred in overruling his demurrer to appellees' answer, (2) the Court erred in overruling his motion for a directed verdict, and (3) there was no competent evidence presented to support the verdict of the jury in denying appellant double rent. The second and third grounds for reversal are dependent on the same facts and principles of law and will be treated as one; and since we have concluded that appellant was entitled to a directed verdict, it is unnecessary for us to discuss or decide the first ground relied on for reversal.
The evidence relied on by appellees in support of their contention that their holding of the property from September 1, 1944, to January 1, 1945, was in good faith believing they had the legal right to do so, is the testimony of C.W. Gaidry, the only witness introduced by them. Mr. Gaidry testified that he believed he had the right to hold the property because he had never entered into a new contract of lease with appellant's predecessors in title, John A. Judy and S.S. Yantis. That was the question presented on the first appeal, and the decision in that case affirmed that of the Chancellor who found that a new contract of lease was entered into. Therefore, the fact now relied on as the basis for the contention that appellees held in good faith is one which has been judicially determined not to have existed. In construing KRS
"Further relief, based on a declaratory judgment, order or decree, may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief, either in the same proceeding wherein the declaratory judgment, order or decree, was entered, or, in an independent action."
The Court properly overruled the demurrer to the petition for further relief.
We are of the opinion the Chancellor should have sustained appellant's motion for a directed verdict, or should have entered judgment for double rent without seeking the advice of a jury on that issue. Since the case was in equity, the judgment is reversed with directions that it be set aside and that another be entered in conformity with this opinion.