Quisenberry v. Chenault

• Decision Date: 06 December 1906
• Citation: 97 S.W. 803
• Parties: QUISENBERRY v. CHENAULT.
• Court: Kentucky Court of Appeals

97 S.W. 803

QUISENBERRY v. CHENAULT.

Court of Appeals of Kentucky.

December 6, 1906

Appeal from Circuit Court, Wolfe County.

"Not to be officially reported."

Action by Ezekiel Quisenberry against E. C. Chenault. From a judgment for defendant, plaintiff appeals. Reversed for further proceedings.

Pendleton Bush & Bush, and J. C. Lykins, for appellant.

J. B White, for appellee.

CARROLL C.

This is the fourth appeal in this case. The former opinions of the court may be found in 43 S.W. 717, 19 Ky. Law Rep. 1632; 56 S.W. 410, 21 Ky. Law Rep. 1771; 57 S.W. 234, 22 Ky. Law Rep 79; and 81 S.W. 690, 26 Ky. Law Rep. 462.

Under an issue out of chancery on the last jury trial of the case a verdict for $2,000 was returned in favor of Quisenberry. From a judgment on this verdict Chenault appealed, and, in the opinion of the court reversing the case, the judgment was "reversed for proceedings consistent with this opinion." Upon the return of the case to the lower court, the appellee Chenault, who was defendant in the action below, moved the court to enter a judgment in favor of defendants for the amount claimed by them, and in controversy in this case, and also moved the lower court to set aside the order for an issue out of chancery to try by jury the question of title, and for judgment on the record pursuant to the decisions of the appellate court. The objection of appellant, Quisenberry, who was plaintiff below, to those motions was overruled, and the court entered a judgment declaring that, "it appearing that every issue of fact has been eliminated by the opinions of the Court of Appeals herein, and the court advised, it is adjudged that said opinions, evidence, and the record show that the plaintiff in the first-named case has no right to the land claimed in the pleadings and are entitled to no relief therein." From that judgment this appeal is prosecuted.

The last opinion of this court did not authorize this disposition of the case or warrant the court in summarily deciding it. It did not determine the rights of the parties, but remanded the action for proceedings consistent with the opinion. Under the mandate issued in conformity to this opinion, the circuit court should have submitted the issues to a jury, being guided in the instructions and in the admission and rejection of evidence by the opinions of this court, and if, upon a retrial of the case, the evidence is in substance the same as...