223 S.W.2d 93 | Ky. Ct. App. | 1949
Affirming.
The opinion on the first appeal, Noel v. Noel,
Appellee has filed her motion in this Court to strike from the record the bill of exceptions including the transcript of evidence, because the order extending the time beyond the last day of the term of Court succeeding that in which judgment was rendered was void as being in contravention of the provisions of Section 334 of the *866 Civil Code of Practice. An order sustaining this motion was entered on the 26th day of April, 1949; but since that order did not assign our reasons for sustaining the motion, and because we deem the question to be of sufficient importance as a guide in future litigation and it is necessary to deliver an opinion in the case in respect to other matters, we have concluded to discuss the question in this opinion.
Section 334 of the Civil Code of Practice provides that an extension of time to file a bill of exceptions may be granted by the Trial Court, but such extension may not be beyond a day in the term next succeeding that in which the judgment was entered. In construing this section of the Civil Code of Practice, this Court consistently has held its provisions to be mandatory, insofar as it precludes the Trial Court from extending the time for filing a bill of exceptions beyond a day certain in the next succeeding term. Hurley v. Greif,
Appellant next complains that the Chancellor erred in refusing to transfer the case to the ordinary docket, since the only issue remaining in the case after the first appeal was that of fact concerning the ownership of the real estate. There is no merit to this contention. The original answer was filed on the 16th day of October, 1946, in which the appellant alleged that appellee had obtained her right, title, and interest to the land in dispute by fraud practiced on appellant. The first amended answer was filed on the 29th day of May, 1946, in which appellant asked for an injunction, and the last amended answer was filed on August 2, 1948, in which he entered a plea of res adjudicata. Section 10 of the Civil Code of Practice provides:
"The defendant, by motion made when he answers, may have an equitable action transferred to the ordinary docket, if, according to the provisions of section 6, it should have been an ordinary action, and if the answer present a defense of which he is entitled to a jury trial."
In construing this Section of the Code we have held that failure to move that a common law action which was filed on the equity docket be transferred to the common law docket for trial in or before filing of the answer is a waiver of the right to transfer and is consent that the *868
Judge try the case without the intervention of the jury. Wilcox v. Lee,
Appellant next complains that the Court erred in sustaining the demurrer to his plea of res adjudicata. After the filing of the mandate issued by this Court on the first appeal, appellee filed an amended petition alleging that she Was the owner of one-half of the real estate theretofore claimed by her, and, in addition thereto, one-half of the personal property owned by appellant by reason of a partnership agreement between the parties. In pleading res adjudicata, appellant contends that this changed the cause of action, and since the partnership contention was not alleged in the original petition but could have been, the decision on the former appeal was an adjudication not only of the matters raised but those which could have been raised as well. Appellant's argument in this respect is somewhat difficult to follow, and we must confess that we are not quite certain that we grasp the thought. But if what we have said is a fair statement of it, we think the Court did not err in sustaining a demurrer to the plea, because the judgment first appealed from was not entered on the merits of the case, but on appellee's plea of res adjudicata, under the erroneous, although to the Chancellor logical, conclusion that the rights of the parties in respect to the matter under litigation had been conclusively determined by the Clark Circuit Court. Since the judgment formerly appealed *869 from was, in effect, a refusal of the Chancellor to determine the rights of the parties as an original adjudication, the decision of this Court on the former appeal was not conclusive as to any matter which had, or might have, been presented in the pleadings or evidence in respect to the merits of the case.
The only question remaining for our consideration on the appeal proper is whether the pleadings support the judgment. Johnson et al. v. Hall Hotel Company,
Appellee has cross appealed on the gorunds that the Court erred; (1) in refusing to permit her to file an amended answer to conform to the proof; (2) in failing to award her the proceeds of sale of all the property as prayed in the tendered pleading; and, (3) in failing to adjudge her to be entitled to one-half of all of appellant's property, real and personal, under her allegation, which she contends is supported by the evidence, that the parties were partners. We cannot determine whether or not the Court erred in respect to any of these contentions, since a decision on each would require a review of the evidence, which appellee herself has caused to be stricken from the record. Moreover, where the bill of exceptions or transcript of evidence is not a part of the record, we will presume that the evidence supports the judgment. Johnson et al. v. Hall Hotel Company, supra.
The judgment is affirmed on both the appeal and the cross appeal.