144 Ky. 618 | Ky. Ct. App. | 1911
.Opinion'of the Court by
— Reversing.
. This is the • second appeal of this case^ Under the opinion npon the former appeal, which may he fonnd in 30 Ky. Law Rep., 634, the only question left to he determined npon the return of the case to the circuit court was, whether appellant bought the 80 acres, he claims, with the knowledge that appellee was claiming below the old Schroeder line, marked E. P. on the diagram made a part of the opinion. A jury trial was had npon
Appellant insists that the court erred in transferring the case to the equity docket and in refusing to sustain his motion for a jury trial. Treating appellant’s motion to -have his objection to the order of -transfer noted of record as having been waived on. account of his fail- ■
“From our view of the case it was not necessary to discuss the question as to whether the appellants had the right to have the issues of fact tried by a jury. The case was referred to the commissioner without objection by the appellants; they appeared before the commissioner, introduced their testimony and when the commissioner made his report they appeared and filed exceptions to the report, which were tried by the court. This was all done without any objection upon their part.' In our opinion it is too late now to make the question that the ease should not have been referred to the commissioner, and as to the proceedings had in the case.”
The effect of appellant’s course in this case was to proceed under the order transferring the case to equity without objection, until the case had been prepared and tried; it was then too late to ask a jury trial
We are of opinion, however, that the court was in error when it refused to permit appellant to read in evidence the proof which had been taken by the official stenographer on the jury trial. The order of the court directed the commissioner to consider all the evidence in the record. This proof was a part of the record at that time, and we see no reason why, under the order in this case, the proof should have been retaken in the shape of formal depositions, since the order was broad enough to embrace this proof, and was not objected to by appellee. This practice was approved in Finley v. Meadows, 134 Ky., 75 — where the proof had been taken by the official stenographer in the jury trial, and the ease, as here, had been subsequently transferred to equity.
Furthermore, this excluded proof contained the testimony of seven witnesses,' which tended strongly to support appellant’s view of the case, and had been used by
For the error in excluding this proof, the judgment of the circuit court is reversed, with instructions to try the case upon the record as made up including the testimony embraced in the bill of exceptions as a part of the proof.