Opinion
February 27, 1959.
Appeal from the Circuit Court, Bell County, W.R. Knuckles, J.
Robert J. Watson, Middlesboro, for appellant.
Tribell, Tribell Ball, John J. Tribell, William S. Tribell, Middlesboro, for appellee
This is a motion for an appeal from a judgment based upon a verdict cancelling a deed and awarding the one to whom the property was conveyed restitution of $300. The property's value is fixed from $1,500 to $1,800 for the purpose of this appeal.
The contention of appellant, Willie Burton, that he was entitled to a directed verdict is untenable. An issue of fact was made out on the question of whether the deed was procured by fraud practiced upon appellee by appellant, and it was proper to permit a jury to resolve this issue. See Kaze v. Compton, Ky., 283 S.W.2d 204.
It is next insisted the lower court erroneously permitted a trial of the case by a jury when none was demanded. No objection was voiced to a trial in this manner until after the verdict was rendered. It follows the objection came too late to be available.
It is finally asserted the verdict rendered was not authorized by the instructions, because appellant was awarded $300 when no instruction empowered the jury to give him a money award. The jury here undertook gratuitously to place the parties in status quo, which is a service the trial judge is called upon to perform when a deed is adjudged cancelled by a court proceeding. Appellant received a benefit and cannot be heard to complain he was rendered an injury under the circumstances.
Wherefore, the motion for an appeal is overruled and the judgment is affirmed.