Morawick v. Martineck's Guardian

• Decision Date: 12 February 1908
• Citation: 128 Ky. 155,107 S.W. 759
• Parties: MORAWICK ET AL. v. MARTINECK'S GUARDIAN ET AL.
• Court: Kentucky Court of Appeals

107 S.W. 759

128 Ky. 155

MORAWICK ET AL. v. MARTINECK'S GUARDIAN ET AL.

Court of Appeals of Kentucky.

February 12, 1908

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

"To be officially reported."

Action by Ernest Morawick and others for the settlement of the estate of Julius Martineck, deceased, in which Alvina E Martineck, by her guardian, filed an answer and counterclaims to charge plaintiff executor with the value of certain bonds unaccounted for. From a judgment for objectors, plaintiffs appeal. Affirmed.

Wm. W Crawford and John B. Baskin, for appellants.

McDermott & Ray and Wm. O. Bradley, for appellees.

CARROLL J.

On February 17, 1905, Julius Martineck died testate in Jefferson county. He nominated the appellant Morawick as executor of his will, and in this action, brought by the executor to settle the estate, the only child of Julius Martineck by her guardian filed an answer and counterclaims, in which she charged that the testator at the time of his death owned five Louisville & Nashville Railroad bonds known as "L. & N collateral trust," each of the par value of $1,000, and worth that sum at the time of the testator's death. She averred that the executor had failed to charge himself with or account for any of these bonds, and had wrongfully converted them to his own use; and sought to hold him liable for the amount of them. The executor answered, denying that these bonds or any of them had come into his possession, or that he had any knowledge or information that the testator at the time of his death owned them. Upon the issue thus presented, on motion of the guardian of the infant, an issue out of chancery was directed upon this point, and the chancellor transferred the case to the law division of the Jefferson circuit court presided over by Judge Gordon, where upon a trial before a jury a verdict was returned against appellant.

No complaint is made of the instructions, which simply directed the jury to find the fact in controversy, but it is earnestly insisted that the verdict is wholly unsupported by the evidence, and that other errors that will be noticed in the course of the opinion were committed by Judge Gordon to the prejudice of appellant. For appellee it is contended that the verdict of the jury is to be treated as would be the verdict of a properly instructed jury in a common-law action, and will not be disturbed unless it is flagrantly against the evidence. For appellant it is insisted that an issue of fact was merely submitted to the jury by the chancellor to get the aid of their opinion in its disposition, and that their finding does not have the effect of a verdict in a common-law action, but is only advisory, and the chancellor may or not in his discretion, after considering for himself the case, feel bound by it; that, without regard to the verdict he had the right to exercise his independent judgment and dispose of the case as he thought proper. It is very difficult to draw distinctly the line between that class of cases in which a party to an action properly brought and pending on the equity side of the docket is entitled as a matter of right to demand that the controverted issues of fact shall be submitted to a jury and that class of cases in which it is wholly within the discretion of the chancellor whether he will or not call to his assistance the aid of a jury; and, as it is not necessary in disposing of the matter before us to make the classification, we will not attempt it further than to say that in this action the defendant, now appellee, was entitled to demand a jury trial on the issue presented by the answer and counterclaim. The only matter in controversy between the parties was whether or not appellant had wrongfully converted to his own use specific personal property to which appellee was entitled. This was purely a legal issue. The action, if one had been brought to recover this property, would properly belong on the ordinary or common-law side of the docket. The fact that the cause of action was asserted in a counterclaim in an equitable action did not deprive appellee of his right to a jury trial. At common law the action would have been in trover. Chitty's Pleading, p. 164. It has none of the elements of an equitable proceeding, and it would have been error not to have granted appellee's request for a jury trial. Our Code of Practice recognizes the right to have legal issues in equitable actions disposed of by a jury. Section 10 of the Civil Code of Practice, provides in part that "the defendant by motion made when he answers may have an equitable action transferred to the ordinary docket * * * if the answer presents a defense of which he is entitled to a jury trial." Section 11: "If there be an issue which was not cognizable in chancery, and an issue which was exclusively cognizable in chancery * * * the plaintiff may have the former issue tried before the latter is disposed of." Section 12: "In an equitable action, properly commenced, as such, either party may, by motion, have the case transferred to the ordinary docket for the trial of any issue concerning which he is entitled to a jury trial; but either party may require every equitable issue to be disposed of before such transfer." It will be observed that the Code does not declare what weight shall be attached to the verdict of the jury if an issue out of chancery or a distinct legal issue in an equitable action is submitted for their decision, but it has been ruled by this court that: "In a case of purely equitable cognizance, the chancellor has the discretionary power to direct an issue of fact to be tried by a jury; and their verdict is, generally speaking, treated by the chancellor as conclusive between the parties, but it is not necessarily conclusive, for the reason that the chancellor simply seeks the advice of the jury to aid him in coming to a correct conclusion on a mooted question of fact. But this principle does not apply where there is a distinct legal issue made in an equitable action; for the reason that the twelfth section of the Code gives either party the right to have such issue tried by a jury, and their verdict, as in ordinary jury trials, is conclusive between the parties, unless the court, upon a motion for a new trial, is satisfied that it is palpably against the weight of evidence." Hill v. Phillips, 87 Ky. 169, 7 S.W. 917.

This general statement of the weight that will be attached to the verdict of a jury when an issue out of chancery on a distinct legal issue in an equitable action is submitted for their consideration, although it does not undertake to classify the cases in which a party is entitled to a jury trial as a matter of right from those in which the chancellor may or not in his discretion seek the advice of the jury, has been generally followed in the practice, and it may be accepted as the rule that will be applied by this court when questions of this character arise; and it may also be considered as settled that when the chancellor in the exercise of his discretion submits an issue to a jury, the submission of which a party cannot demand as a matter of right, that the verdict is not binding upon the chancellor. We do not mean to say that the verdict of a jury in any case is binding upon the chancellor or the court, as the court in any case tried before it has the power to set aside the verdict, although in unmistakably common-law actions, or in respect to a distinctly legal issue submitted in an equitable action, the court might be more reluctant to disturb the finding of a jury than would the chancellor if the jury merely considered an issue of fact submitted to them by him in an equitable action. As illustrative of the practice, and supporting the rule announced in Hill v. Phillips, we do not deem it necessary to do more than cite the cases of Wisdom v Nichols-Shepherd Co., 97 S.W. 18, 29 Ky. Law Rep. 1128; McElwain v. Russell, 12 S.W. 777, 11 Ky. Law Rep. 649; Ford v. Ellis, 56 S.W. 512, 21 Ky. Law Rep. 1837; Reese v. Youtsey, 113 Ky. 839, 69 S.W. 708; Jones v. Woods, 70 S.W. 45, 24 Ky. Law Rep. 840; Bush v. Eastern Kentucky Timber & Lumber Co., 90 S.W. 547, 28 Ky. Law Rep. 773; Baxter v. Knox, 31 S.W. 284, 17 Ky. Law Rep. 489. Under our view of the law and practice applicable to this case and controlled by the rule so uniformly applied by the court in considering the verdict of a properly instructed jury in a common-law action, we could not set aside the verdict unless it was flagrantly against the evidence; but, if we should accept the views of counsel for appellant and treating this case as if the issue referred to the jury was one that the chancellor might in his discretion have disposed of without a reference, the question would remain: What weight shall be attached to the finding of the jury? That the judgment of 12 unbiased jurors upon a controverted question of fact is entitled to great consideration goes without saying; and although the chancellor might disregard their finding, he would not do so lightly, or unless fully satisfied that injustice had been done. This thought is well stated in Lee v. Beatty, 8 Dana, 204, where the court said: "If, however, the judge shall, after a finding by the jury impaneled in such a case, and for such a purpose, be well satisfied that the facts did not authorize the verdict, or preponderated decidedly against it, he would have the unquestionable right to disregard the finding by the jury, and render such a decree as he should have done in the first instance, without the aid of an inquisition. But if, as we should presume would generally be the case when a jury has been properly ordered, the judge should after the finding, as before, consider the facts as being equiponderant or very nearly so, he...