Vance v. Field

• Decision Date: 12 October 1889
• Citation: 12 S.W. 190,89 Ky. 178
• Parties: VANCE v. FIELD, Judge.
• Court: Kentucky Court of Appeals

12 S.W. 190

89 Ky. 178

VANCE v. FIELD, Judge.

Court of Appeals of Kentucky.

October 12, 1889

Petition for mandamus.

"To be officially reported."

Barnett Miller & Barnett, W. W. Thum, and C. B. Seymour, for plaintiff.

O'Neal Jackson & Phelps and John S. Jackman, for defendant.

LEWIS C.J.

This is a proceeding by Burton Vance for a mandamus from this court, requiring Emmet Field, judge of the Jefferson court of common pleas, to proceed according to the rules of court and law of the land to judgment with an action ordinary, in which said Vance is plaintiff, and the Louisville Courier Journal Company is defendant. It appears from the petition filed in this court, and transcript of the record accompanying it, that the action was, in December 1886, commenced in the Louisville law and equity court, and the parties had pleaded to an issue triable by jury when February 4, 1889, the plaintiff filed with the clerk of that court the following affidavit: "The plaintiff, Burton Vance, on oath says that the judge before whom the above-styled action is now pending will not afford him a fair and impartial trial." But, notwithstanding the affidavit was filed, and objection made to the jurisdiction of the court, the action was, February 12, 1889, submitted to a jury for trial, who, however, having failed to agree on a verdict, were, February 15, 1889, discharged. Whereupon, on motion of the defendant, an order of court was reassigning the action for trial April 12, 1889; and April 11, 1889, another order was made in the same court assigning it for trial June 15, 1889. It further appears that February 25, 1889, the plaintiff, in writing, directed the clerk of the Jefferson court of common pleas to place said action upon the docket of cases set at rules in that court to be called March 18, 1889, which was done; and, upon call of said action, the plaintiff moved the last-named court to assign it to a day for trial, and to proceed with it to judgment; but the court refused to permit any entry of the motion, or of exceptions to its action or non-action, or to grant an appeal to this court, the reason, as appears from minutes of the proceeding then had, and as stated in the answer of the judge to the petition filed in this court, being that the action had not been transferred from the Louisville law and equity court to the Jefferson court of common pleas, and the latter had, consequently, no jurisdiction of it.

Section 477, Civil Code, is as follows: "The writ of mandamus, as treated of in...