Reports of Civil and Criminal Cases Decided by the Court of Appeals of Kentucky Volume 146
This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1912 edition. Excerpt: ...presumed. (Smith v. Snowden, 96 Ky., 32; Hoeb v. Maschinot, 140 Ky., 330; Darlington's Estate, 30 Am. St. R., 7 '76.) It is insisted, however, that the case is not so presented that we can consider it on the merits. After the pleadings had been made up, the plaintiff asked a jury trial. At the conclusion of the evidence for plaintiffs the court instructed the jury peremptorily to find for the defendants. The jury returned a verdict as directed by the court. The plaintifis filed grounds for a new trial; the motion was overruled. The plaintiffs then offered to file a reply to which the defendants objected. The reply was filed to which the defendants excepted. The defendants were then given thirty days to file their rejoinder. They filed the rejoinder; both sides then took their proof by depositions and the case being submitted on the merits, the court dismissed the plaintiffs' petition. If this was an ordinary action there would be much force in the contention that the merits of the case were not before us. But this is an equity action to set aside a deed. The verdict of the jury is only advisory to the chancellor. He can disregard it when he comes to render his final judgment if he sees proper. The verdict of the jury not being conclusive in the action, it was within the power of the chancellor to disregard it and to hear the case on its merits as finally prepared by the parties. (McElwain v. Russell, 11 R., 649; Hill v. Philips, 87 Ky., 169; Ford v. Ellis, 21 R., 1837.) This he did and he having heard the case on its merits, on an appeal from his judgment, the case is here on" its merits. Judgment reversed and cause remanded for a judgment as above indicated. J. D. Hughes Lumber Co. v. G. M. & J. B. Knuckles. (Decided...
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