Elias & Shepherd v. Gill
| Decision Date | 09 February 1892 |
| Parties | Elias & Shepherd v. Gill. |
| Court | Kentucky Court of Appeals |
APPEAL FROM KENTON CIRCUIT COURT.
WM. GOEBEL FOR APPELLANTS.
HALLAM & MEYERS, O'HARA & BRYAN FOR APPELLEE.
Appellee brought this action to recover of appellants eighteen hundred and sixty-three dollars, alleged to have been wagered on horse races with and lost and paid by him to them, as partners, in different amounts and at different dates between May 30, and July 27, 1889.
In the first paragraph of the answer there is a denial that the sum sued for, or any part of it, was lost or paid by appellee to appellants or either of them at or on account of wagering on horse races or otherwise, at the dates specified, or any other time or times. In the second paragraph and subsequent amendments thereto, it is averred in substance that at the dates and place, and in the same transactions mentioned in the petition, appellants wagered on horse races with, and lost and paid to, appellee, the aggregate sum of eighteen hundred dollars, never repaid, for which they pray judgment, the answer being for that purpose made a counter-claim.
The reply contains two paragraphs: In the first is a denial that at the times mentioned in the answer or at any time, appellants, or either of them, lost or paid to appellee any money whatever at wagering on horse races. In the second is the averment in substance that all the wagering mentioned in the pleadings preceding the reply were made with appellee by appellants as partners engaged and interested in a certain pool-room in the city of Covington, kept contrary to law, wherein they were professional wagerers against the public on horse races, and that appellee was one of the public and not a professional wagerer. The lower court overruled the general demurrer of appellants to the reply, but sustained their motion requiring appellee to elect which paragraph of his reply should be stricken from his pleading, and upon his refusal so to elect the first paragraph was stricken out of the reply. Appellants then filed a rejoinder wherein they denied that in the transactions mentioned appellee was, as alleged in his reply, one of the public; but averred that he was a professional wagerer, and engaged in wagering as a business and means of support.
As appears from the bill of exceptions, the court decided that the only issue in the case was whether appellee was, in the transactions mentioned in the pleadings, a professional wagerer, and required appellants to assume, on the trial, burden of proof. And notwithstanding there was evidence conducing to prove he was such wagerer, a peremptory instruction was given to the jury to find the full amount sued for, which was done.
Section 2, article 1, chapter 47, General Statutes, provides that "if any person shall lose to another at one time or within any twenty-four hours, five dollars or more * * and shall pay * * the same, such loser or any creditor of his may recover the same * * from the winner * * by suit brought within five years after the payment."
Undoubtedly a cause of action under that section was stated in appellee's petition. But each material allegation...
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