Campbell v. Hulett

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtSTEWART
Citation243 S.W.2d 608
PartiesCAMPBELL et al. v. HULETT et al.
Decision Date16 February 1951

Page 608

243 S.W.2d 608
CAMPBELL et al.
v.
HULETT et al.
Court of Appeals of Kentucky.
Feb. 16, 1951.
Rehearing Denied Dec. 6, 1951.

Page 609

Carl F. Eversole, Richmond, for appellants.

J. P. Chenault, H. D. Parrish, Richmond, for appellees.

STEWART, Justice.

Appellants, Fred Campbell and Charlie Campbell, filed this action as plaintiffs below against appellees, Ed Hulett and Minnie Hulett, seeking damages from them for a breach of warranty based upon the loss of title to a quantity of land conveyed by appellees to them. Appellants alleged that they were induced to buy a farm from the Huletts for $4200 cash, consisting of a little over 42 acres, because the latter represented that an abandoned right-of-way of the L. & N. Ry. Co., traversing the entire property, was a private passway and was used permissively only by one Robert Lawson, which could be closed by the Campbells at will; that, relying upon the statements of the Huletts, they attempted to close the right-of-way, with the result that Lawson permanently enjoined them from doing so; that the passway amounting to a deduction of 1.86 acres off of the land bought was finally adjudged to be a public road by a decision of this Court; and that they sustained a loss of $1000 for the land taken from them and paid out $500 for attorney fees and court costs in defending their title to the strip in question, for which they seek a recovery.

The petition of the Campbells was filed in the Madison Circuit Court on September 11, 1945. The action was tried at the October term, 1946, the May term, 1947, and the October term, 1948, and each trial resulted in a hung jury. It had been continued during the October, 1947, the February, 1948, and the May, 1948, terms of the circuit court, due to the ill health of the attorneys representing the Huletts. At the February term, 1947, it was continued again, but this time on appellants' motion. On the 10th day of the May term, 1949, appellees filed their motion to dismiss this action, for reasons that are reiterated in the trial judge's order below. The lower court sustained this motion, by filing the case away with leave to redocket it, adjudging, in part, as follows:

'* * * and the Court having duly considered the said motion to dismiss and being duly advised in the premises is of the opinion that on each one of the three previous trials of this case, each trial consuming two days, both parties had full and complete opportunity to and did present and introduce all of their witnesses and evidence of every kind; that neither party has suffered from nor has either complained of any casualty or misfortune of any kind in the full production of all of their evidence, and on the third and last preceding trial

Page 610

hereof the Court finally submitted the case to the jury entirely upon the instructions prepared and offered by counsel for plaintiffs, and the Court knows of no reason to expect or anticipate any different result than that already achieved should this case be again tried and submitted to another jury, or other juries, and the Court is of opinion that it will be a waste of the parties time and money to again submit same to a jury.

'It is therefore ordered and adjudged by the Court that this case be and the same is now filed away with leave to redocket, and it is further ordered and adjudged that each of the parties hereto pay the costs herein respectively incurred and created by each.'

Appellants then moved to reinstate the case on the docket for a trial at the same term of court, and they now present to this Court on this appeal the propriety of the trial court's action in overruling...

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5 practice notes
  • Cosby v. Com., No. 2002-SC-0806-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • 26 de agosto de 2004
    ...trial is the judicial investigation and determination of the issues between the parties to an action." Campbell v. Hulett, Ky., 243 S.W.2d 608, 611 (1951). In the case at bar, sentencing was an issue between Cosby and the Commonwealth that needed to be determined. As such, under the ci......
  • Lebus v. Lebus
    • United States
    • United States State Supreme Court (Kentucky)
    • 2 de outubro de 1964
    ...that such an order does not constitute a final or appealable judgment under CR 54.01 and the following cases: Campbell v. Hulett, Ky., 243 S.W.2d 608; Massey v. Fischer, Ky., 243 S.W.2d 889; Commonwealth ex rel. Reeves v. Unknown Heirs of Brown, Ky., 249 S.W.2d 52; Brumley v. Lewis, Ky., 34......
  • Polk v. Geoghegan
    • United States
    • United States State Supreme Court (Kentucky)
    • 21 de novembro de 1969
    ...This was not a final and appealable judgment under the principles recognized in the following cases: Campbell v. Hulett, Ky., 243 S.W.2d 608 (1951); Commonwealth ex rel. Reeves v. Brown, Ky., 249 S.W.2d 52 (1952); Hackney v. Hackney, Ky., 327 S.W.2d 570 (1959); Brumley v. Lewis, Ky., 340 S.......
  • McCreary County Bd. of Ed. v. Stephens
    • United States
    • United States State Supreme Court (Kentucky)
    • 1 de novembro de 1968
    ...under CR 54.02 it was interlocutory. Evans Elkhorn Page 689 Coal Co. v. Ousley, Ky., 388 S.W.2d 131 (1965); Campbell v. Hulett, Ky., 243 S.W.2d 608 (1951) and 7 Kentucky Practice, Clay 127--128. The motion to grant an appeal is premature. Whitaker v. Fields, Ky., 377 S.W.2d 67 (1964) and Bu......
  • Request a trial to view additional results
5 cases
  • Cosby v. Com., No. 2002-SC-0806-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • 26 de agosto de 2004
    ..."A trial is the judicial investigation and determination of the issues between the parties to an action." Campbell v. Hulett, Ky., 243 S.W.2d 608, 611 (1951). In the case at bar, sentencing was an issue between Cosby and the Commonwealth that needed to be determined. As such, under the circ......
  • Lebus v. Lebus
    • United States
    • United States State Supreme Court (Kentucky)
    • 2 de outubro de 1964
    ...that such an order does not constitute a final or appealable judgment under CR 54.01 and the following cases: Campbell v. Hulett, Ky., 243 S.W.2d 608; Massey v. Fischer, Ky., 243 S.W.2d 889; Commonwealth ex rel. Reeves v. Unknown Heirs of Brown, Ky., 249 S.W.2d 52; Brumley v. Lewis, Ky., 34......
  • Polk v. Geoghegan
    • United States
    • United States State Supreme Court (Kentucky)
    • 21 de novembro de 1969
    ...This was not a final and appealable judgment under the principles recognized in the following cases: Campbell v. Hulett, Ky., 243 S.W.2d 608 (1951); Commonwealth ex rel. Reeves v. Brown, Ky., 249 S.W.2d 52 (1952); Hackney v. Hackney, Ky., 327 S.W.2d 570 (1959); Brumley v. Lewis, Ky., 340 S.......
  • McCreary County Bd. of Ed. v. Stephens
    • United States
    • United States State Supreme Court (Kentucky)
    • 1 de novembro de 1968
    ...under CR 54.02 it was interlocutory. Evans Elkhorn Page 689 Coal Co. v. Ousley, Ky., 388 S.W.2d 131 (1965); Campbell v. Hulett, Ky., 243 S.W.2d 608 (1951) and 7 Kentucky Practice, Clay 127--128. The motion to grant an appeal is premature. Whitaker v. Fields, Ky., 377 S.W.2d 67 (1964) and Bu......
  • Request a trial to view additional results

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