126 S.W.2d 1117 | Ky. Ct. App. | 1939
Affirming.
This is the second appeal of this case. See McDonald's Executor v. Transylvania University,
On the return of the case to the trial court, Transylvania made a motion to have the case set down for trial. The executor, on the other hand, moved the court to enter a judgment conforming to the verdict and dismissing the answer and counterclaim. The chancellor refused to assign the case for retrial and sustained the motion of the executor for judgment. This appeal followed. The questions now before us are whether this conformed to the directions of this Court on the first appeal and whether, under the Code, a new trial was required.
It was strenuously argued by the executor on the first appeal that the issue submitted was purely legal and should be treated as binding if not flagrantly against the evidence. Transylvania, on the other hand, insisted at that time that the verdict was advisory only and was properly disregarded by the chancellor. We said, page 171, 118 S.W.2d page 172:
"That the issue presented was an equitable one, finds convincing support in James v. Cullins,
214 Ky. 179 ,282 S.W. 1106 ; Morawick v. Martineck's Guardian,128 Ky. 155 ,107 S.W. 759 , 32 Ky. Law Rep. 971; Consolidation Coal Company v. Vanover,166 Ky. 172 ,179 S.W. 43 ; Winchester v. Watson,169 Ky. 213 ,183 S.W. 483 ; Barnes v. Johnson, 111 S.W. 372, 33 Ky. Law Rep. 803: Louisville N. Railroad Company v. Tuttle,180 Ky. 558 ,203 S.W. 308 ; Hendrix v. Money, 1 Bush 306; Blakey v. Johnson, 13 Bush 197, 200, 26 Am. Rep. 254; McElwain v. Russell, 12 S.W. 777, 11 Ky. Law Rep. 649; Sellers v. Sellers,162 Ky. 9 ,171 S.W. 449 ."
In spite of our conclusion that the issue was equitable, we reversed the case because of our opinion that the verdict of the jury was correct and the conclusion of the chancellor in refusing to follow it was erroneous. The result of the decision was to sustain the verdict and to reverse the decision of the chancellor. The question of the weight to be given to the verdict of the jury was not, therefore, an essential link in the reasoning necessary to the conclusion reached.
The situation is now reversed and Transylvania is, in effect, insisting that the verdict of the jury was based on a legal issue and not an equitable one. It argues from this premise that the effect of our previous opinion was to reverse the case for a new trial as in other *611
common law actions and not simply to direct a judgment as in a proceeding which is purely equitable. Elkhorn Land
Improvement Company v. Wallace,
Originally, the common law took no cognizance of insanity as a defense to a suit on a contract. Williston on Contracts, Revised Edition, section 249. Even today, insanity, unaccompanied by over-reaching or fraud — where the other party is without knowledge of the insanity or without reason to suspect it — has been held to be no defense to an action on a contract. Fitzpatrick's Administrator v. Citizens' Bank Trust Company,
"Appellants' complaint of the circuit court's refusal to allow them a trial by jury of the issues of fact made by the pleadings cannot properly be sustained. The action being one of purely equitable cognizance, appellants were not, as a matter of right, entitled to a trial of the issues of fact by a jury. It was in the discretion of the court to allow it as an issue out of chancery, but it would not have been bound by the verdict of the jury. The refusal of the jury trial was not therefore an abuse of its discretion." See also Reese's Administrator v. Youtsey,
113 Ky. 839 ,69 S.W. 708 , 24 Ky. Law Rep. 603; Jones v. Wood, 70 S.W. 45, 24 Ky. Law Rep. 840.
The most that we can say for the contention of *612
Transylvania, under the authorities cited, is that the issue is one which may have been cognizable both at law and in equity. Even if it be true that the jurisdiction is concurrent and not purely equitable, nevertheless the verdict would not be binding on the chancellor. Gray v. Grimm,
It follows from the foregoing that the first appeal to this court involved a controversy of an equitable nature unaffected by any right to the trial of a strictly legal issue before a jury. This being true, we do not think the chancellor erred in entering a judgment in conformity with our opinion on the first appeal and in conformity with the verdict of the jury theretofore rendered. We see no reason for him to do otherwise.
Judgment affirmed.