Gayheart v. Childers, &C.
| Citation | 137 Ky. 472 |
| Parties | Gayheart v. Childers, &c. |
| Decision Date | 11 March 1910 |
| Court | Court of Appeals of Kentucky |
Appeal from Knott Circuit Court.
Judgment for plaintiffs, defendant appeals. — Affirmed.
SMITH & COMBS for appellant.
J. M. BAKER, for appellees.
In the year 1884 appellees instituted an action in the Knott circuit court against appellant to recover about 36 acres of land, and for a sale of it and a division of the proceeds. The case was tried and judgment rendered in favor of appellees on April 8, 1893. An appeal was prosecuted to this court, and in the month of October, 1897, this court reversed that judgment, and the case was "remanded with directions to award appellant a new trial, and for further proceedings consistent with this opinion." 42 S. W. 730, 19 Ky. Law Rep. 1052. The mandate was filed in the lower court, and the case remained on the docket until the month of November, 1902, when it was again tried and another judgment rendered in behalf of appellees. (In the meantime, however, additional proof had been taken). In that judgment the following recital appears: "The court advised is of the opinion that the evidence introduced by plaintiffs since the return of this cause from the Court of Appeals overturns the conclusion that a divisional line was ever made between the lands claimed by plaintiff and that claimed by defendants." No part of the record of the case referred to is copied into this record, except the two judgments cited and one or two orders of continuance of the case. We have no information as to whether that case was prosecuted in equity or at law, except the statement of appellant's counsel in their brief and in their notice of their motion in the case at bar. No brief has ever been filed for appellees. There are some statements in the record before us from which it may be reasonably inferred that it was in equity, but there are others indicating that it might have been prosecuted as an ordinary action. For instance, the action was brought for the recovery of land from appellant which it was alleged he was wrongfully in the possession of, and for the value of some timber trees taken therefrom, and the judgment of this court remanding the case for a new trial. These facts would indicate that it was prosecuted at law. The fact that appellee sought a sale of the land and a division of the proceeds in the same action, and the recital indicating that the proof had been taken by deposition, would justify an inference that it was prosecuted in equity. The second judgment, the one rendered in November, 1902, has never been reversed, modified, vacated, or appealed from, so far as this record shows. On July 22, 1908, pursuant to a notice executed upon appellees, appellant entered a motion in the Knott circuit court to set aside the second judgment referred to, upon the ground that it was a misprision of the clerk, and asked the court to enter judgment for him in conformity with the opinion and mandate of the Court of Appeals, which motion was overruled, and it is from that judgment this appeal is prosecuted.
If the action referred to was prosecuted as a common-law action, there can be no question of the right of the lower court in giving appellees a new trial after the reversal by this court, and they had the right to introduce any and all evidence they desired. But if it was an action in equity, and we will so treat it, the court improperly allowed the introduction of other evidence. It should have entered an order dismissing appellees' action, because the opinion by this court clearly and completely settled the rights of the parties. But it seems the lower court disregarded the opinion and granted a new trial, for the reason, we suppose, of the language used by this court in closing the opinion....
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