Court of Appeals of Kentucky.

BINGHAM et al.

v.

MILLS.

Nov. 25, 1938.

Appeal from Circuit Court, Knox County.

Action in ejectment by Cordia Mills against Robert Bingham and others. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment affirmed.

THOMAS, Justice.

This ordinary ejectment action was filed in the Knox Circuit Court by the appellee and plaintiff below against appellants and defendants below on March 22, 1928. Plaintiff in her petition alleged that she was the owner of a described tract of land in Knox County, and that defendants under a claim of title in them had wrongfully taken possession of about two acres of her described tract, which was triangular in shape, being about 300 feet wide at the base and coming to a point about one-half mile distant at the top of a mountain--the dispute, of course, being over the correct location of their dividing line.

Defendants answered, denying plaintiff's ownership of the strip of land, and asserted ownership in themselves as well as the right of possession thereof, and they prayed for a dismissal of plaintiff's petition and that they be adjudged the owner of the disputed land; but they unnecessarily prayed that their title to it be quieted--a consequence that would inevitably result from a dismissal of the petition followed by an adjudication that defendants were the owners of and entitled to possession of the land in dispute.

Notwithstanding the pleadings were in that condition, the court (evidently through oversight) on May 3, 1928, rendered a default judgment in favor of plaintiff; but she did not apply for a writ of possession until in April, 1937, when she made motion therefor pursuant to notice. Defendants appeared and resisted the motion on the ground that the somewhat ancient default judgment was prematurely rendered, and at a time when defense was interposed resisting plaintiff's right of recovery, thus requiring testimony on her part to establish her alleged title. For such reason defendants at the same time moved to set aside the default judgment. The court overruled plaintiff's motion for a writ of possession but sustained defendants' motion to set aside the default judgment, thereby restoring the status of the case to the condition it occupied immediately prior to the rendition of the default judgment. The parties then began to take their proof by depositions, although no motion for any order of transfer of the cause from the ordinary to the equity docket had been made, nor was any such order ever entered.

After the proof had been so completed, and on July 17, 1937, the court adjudged that the plaintiff by her proof had established her title to the disputed land, and that she was entitled to the possession of it. From the judgment based on such findings, defendants prosecute this appeal.

The beginning of the judgment--as it is copied into the transcript of the record--states: "This cause being on submission to the court for judgment upon the pleadings, depositions and exhibits (the right of a jury being waived by both parties) and by agreement of the parties, the case has been prepared by depositions, and it appearing", etc. It, therefore, will be seen that both the parties and the court recognized the fact that the action was an ordinary one and triable by a jury; but, by agreement a jury was waived and the ordinary issue was submitted to the presiding judge of the court for determination. The excerpt likewise discloses that the parties also waived the prescribed mode of introducing the proof and agreed that it might be taken by deposition, to have the same force and effect as if their witnesses, who could be forced to attend the trial, were present and testified in open court.

It is, therefore, clearly made to appear that the court, as well as the parties to the litigation, did not lose sight of the fact that the action was an ordinary one, and that its trial by the court instead of before a jury--as well as the method of introducing the proof--were each the result of agreements of the parties which was concurred in by the court. Therefore, counsel's assumption (as stated in his brief) that both the parties and the court treated the cause as an equitable one and triable as such, is refuted by the record itself.

However, if the appeal had been properly prepared so as to entitle us to look to the evidence to determine the correctness of the judgment appealed from, and if that evidence had been properly certified to us, as it is contained in the volume brought here, we could not then say that the findings of fact by the court were flagrantly against the evidence, or even against the preponderating weight of it, so as to authorize us to reverse it for that reason.

Wherefore, it is affirmed.

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