Shely v. Shely

• Decision Date: 01 December 1898
• Citation: 47 S.W. 1071
• Parties: SHELY v. SHELY. [1]
• Court: Kentucky Court of Appeals

47 S.W. 1071

SHELY v. SHELY. ^[1]

Court of Appeals of Kentucky.

December 1, 1898

Appeal from circuit court, Fayette county.

"Not to be officially reported."

Action by W. F. Shely against J. D. Shely on two promissory notes. Judgment for plaintiff, and defendant appeals. Affirmed.

Forman & Bartlett, for appellant.

Breckinridge & Shelby, for appellee.

HAZELRIGG, J.

The appellee sued his brother, the appellant, on two notes, and as to one of them was met with a plea of non est factum. While the amount of this note is for $326 only, the feeling engendered by this answer, and the unusual effort made by each brother to sustain himself against the other, prolonged the trial for about a week; and when finally the jury retired to consider the case, it remained apparently unable to agree for some two days, but, after direction by the court to try again, a verdict was at last returned for plaintiff, the appellee. This direction or admonition of the court furnishes a ground of complaint on this appeal. It was as follows: "Gentlemen, I will ask you to deliberate further on this case. This is not done to punish you. I never have and never will try to force any juror to find a verdict which his conscience does not approve. But you know the length of time we have taken in trying this case, and I feel that no twelve men can be found better qualified than you to decide it; and it is given to you for further deliberation in the hope that you may be enabled, after further consideration, to make a verdict." We can find no fault with this statement. Even if it be true, as appellant avers in his grounds for new trial, that up to the time it was made a majority of the jury stood for the defendant, the statement contains nothing whatever of an objectionable nature. We have carefully examined the objections made by appellant to the court's rulings on certain matters of testimony, and find no error which could have affected the substantial rights of the appellant; nor do we think that the alleged newly-discovered evidence was of a conclusive or preponderating character. The judgment is affirmed.

---------

Notes:

^[1] Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

---------