McWhorter v. Ballou

• Decision Date: 24 June 1949
• Citation: 310 Ky. 764,221 S.W.2d 667
• Parties: McWHORTER v. BALLOU et al.
• Court: Kentucky Court of Appeals

221 S.W.2d 667

310 Ky. 764

McWHORTER v. BALLOU et al.

Court of Appeals of Kentucky

June 24, 1949

Appeal from Circuit Court, Clinton County; R. C. Tartar, Judge.

Suit by P. V. Ballou and others against Otha McWhorter to try title to realty, recover damages for value of trees allegedly cut without right and converted to defendant's own use, and for other relief, wherein defendant filed a counterclaim. From the judgment, defendant appeals.

Affirmed.

James A. Hicks, Albany, L. C. Lawrence, Jamestown, H. C. Kennedy Somerset, for appellant.

J. A Flowers and Flowers & Pritchard, Albany, Duncan & Duncan Monticello, for appellees.

KNIGHT Justice.

Statement of the Case.

This suit was brought by appellees, P. V. Ballou, A. J. Watham and W. L. Straley against appellant, Otha McWhorter, for damages in the sum of $200, the value of twenty-five trees which it is alleged appellant cut without right and converted to his own use. The petition and amended petitions allege that appellee P. V. Ballou is the owner of the two tracts of land described in the amended petitions. The first tract, known as the Conner survey, of 259 acres, less 67 acres off the north part thereof heretofore conveyed to J. B. Conner, is fully described in the first amended petition, and the second tract, known as the Brown tract, is fully described in the second amended petition, the exact acreage in this tract not being shown. Both tracts of land are in Clinton County near the Russell County line. The petition further alleges that timber on the above tracts of land was sold and conveyed to appellees, A. J. Watham and W. L Straley, and that appellant is threatening to continue to cut the trees and timber off said land which timber and land belong to appellees. In addition to the damages prayed for, appellees pray that appellant be enjoined from cutting or removing any more timber from the tracts of land described in the petition and amended petitions. A restraining order was issued against appellant.

In his answer and counterclaim and amended answer and counterclaim appellant denies the allegations of the petition and amended petitions, sets up that he is the owner of 67 acres of land which he describes in his amended answer and counterclaim and which he says is the 67 acres referred to and excepted from the 259 acre boundary described in appellees' first amended petition. He further alleges that none of the timber which he cut was on the land of appellee Ballou but instead all was cut on the 67 acres belonging to appellant; that appellees, without right, have entered upon and cut from the 67 acre tract belonging to appellant 50 trees valued at $500. He prays damages in his original answer and counterclaim for $100 on account of the unlawful restraining order and for $500 additional damages in his amended answer and counterclaim for the unlawful cutting of the trees on the 67 acres. He further alleges that no part of the timber which he was alleged to have cut was cut from the Brown tract described in appellees' second amended petition.

Upon the issues being made up by replies filed, the court, on motion of appellees, transferred the case from the equity side of the docket, in which it had first been filed, to the ordinary docket 'to try an issue out of chancery.' The case was heard before a jury and at the conclusion of the trial the jury brought in a verdict signed by its foreman as hereinafter set out in the judgment below. The court thereupon entered a judgment the material parts of which, for the purposes of this appeal, are as follows:

'This action having been transferred to the ordinary docket for a trial before a jury on the issues of fact presented by the pleadings * * * and the jury having returned into open court the following verdict, towit:

'We the jury find for the plaintiffs the sum of $5.00 Signed L. S. York, foreman.'

'Thereupon this action was submitted to the court for hearing and judgment upon the pleadings, exhibits, the testimony heard upon the trial of this action and the verdict of the jury and the court being advised adjudges as follows: that plaintiff P. V. Ballou is the owner and entitled to the immediate possession of the tracts of land and plaintiffs A. J. Watham and W. L. Straley are owners of the merchantable timber standing, lying or growing upon said lands, situated in Clinton County Ky. on the waters of Indian Creek and described as follows:

(1) (Here follows a new description of the Conner tract less the 67 acre exclusion.) (2) (the Brown tract as referred to in the second amended petition.)

'It is further adjudged that plaintiffs A. J. Watham and W. L. Straley recover of defendant Otha McWhorter the sum of $5.00 for timber cut and removed from said land and the defendant is hereby permanently enjoined from cutting or removing timber on the land described herein.'

The judgment then adjudges costs to plaintiffs, dismisses defendant's counterclaim and grants defendant an appeal to the Court of Appeals. It is from this judgment that this appeal is prosecuted.

Points on Appeal.

We have set out the judgment in this case substantially in full because one of the contentions of appellant is that the judgment was not authorized by the verdict of the jury, which verdict did not determine the ownership of the land involved in dispute but simply found a nominal sum in damages for trees cut.

This was a suit to try title and for an injunction and incidental damages and was purely an equitable action. The case was transferred to the ordinary docket to try an issue of fact out of chancery. The verdict of the jury was only advisory and could have been disregarded by the chancellor. Carter v. Flegle, 192 Ky. 193, 232 S.W. 621; James v. Cullins, 214 Ky. 179, 282 S.W 1006. When that issue of fact was decided we assume that the case then came before the chancellor and that it was as such that he entered the judgment because that judgment says, 'Thereupon this action was submitted to the Court for hearing and judgment upon the pleadings, exhibits, the testimony heard upon the trial of this action and the verdict of the jury and the court being advised adjudges as follows:' It therefore appears that the chancellor accepted the verdict of the jury on the question of damages for cutting of the trees but as chancellor and on the whole record adjudged appellees owners of the land involved and the timber thereon. The judgment of the chancellor was therefore authorized even though the verdict of the jury, which was only advisory, covered only one phase of it.

Another contention of appellant is that the court erred in refusing to allow the jury to consider certain important testimony offered by him. This evidence consisted of a part of the record in another suit between appellee and other parties involving that part of the Conner tract involved in this litigation then as now owned by appellee Ballou. The point involved in that suit was location of the Kelsey corner and the location of the line between Ballou and Denny, and that litigation reached this court and is reported as Ballew v. Denny, 296 Ky. 368, 177 S.W.2d 152, 150 A.L.R. 770. The division line in controversy there was much further south than the lines in controversy here and had no connection therewith. But part of the record in that case was sought to be introduced for the purpose of showing the location of the Jackman corner which is the beginning corner of the Conner tract now owned by appellee Ballou and the location of which corner is one of the points in controversy here. The parts of the record which appellant desired to introduce were introduced over appellees' objection by Ronnell Gibson, appellant's surveyor and witness in this case, who had also made a survey and report to the court in the Ballou-Denny case but at the conclusion of all the evidence the court admonished the jury not to consider as evidence in this case any evidence given by Ronnell Gibson about locating any line under any order of the court in the other case. While we think this admonishment should not have been given and that the evidence was not incompetent, we do not think its exclusion was prejudicial in this case. That evidence was largely cumulative. Ronnell Gibson and other surveyors gave full and complete testimony as to the location of the controversial Jackman corner and the entire boundary lines of appellant's tract, as he claimed it to be, and of the boundary lines of the Ballou tract, as the witness believed it to be. We do not think the admonition to the jury not to consider as evidence the court records in another case as additional evidence was so prejudicial to appellant's substantial rights as to justify reversal on that ground.

We come now to the principal ground relied on for reversal by appellant and that is that the verdict and judgment are not supported by the evidence. As in all boundary...