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It is therefore ordered that the judgment appealed from be reversed upon the appeal of the city of Princeton, and affirmed upon the appeal of R. W. Lisanby; and the cause is remanded, with directions to proceed in conformity with this opinion. All concur.

city. It appears from the proof that upon | nothing which was not already alleged in the the faith of the ordinance, which attempted petition of the city, and no sufficient reason to grant a franchise to appellee, extending was given in it to authorize the petitioner from January 1, 1917, until January 1, 1927, to intervene. the appellee has expended large sums of money in securing and preparing a new location for the main portion of its plant, and at the present time furnishes light to a majority of the citizens of the city in their dwellings and business houses, to the churches, schools, and public buildings, and power for the operation of the city waterworks plant, and to railroad shops, which are in the city, and has entered into various contracts with different parties to furnish light and power, and upon which the parties are relying for the conduct of their business and avocations, and there is no other plant for the generation of electric light and power in the city. These engagements, however, do not protect the appellee from an ouster from the streets and public ways, but should be considered in fixing the time when the ouster should be put into effect.

[13, 14] Citizens of a municipality may compel a grantee of a franchise, where there are provisions in it for their benefit, to exercise the franchise (Cumberland T. & T. Co. v. Hickman, 129 Ky. 220, 111 S. W. 311, 33 Ky. Law Rep. 730); but a city could not be required to allow the use of its streets by a public service corporation without a franchise, because it had entered into obligations with citizens, which it could not perform without a franchise. It was its duty to obtain a franchise before entering into such obligations. The appellee, however, having been permitted by the council of the city under different grants of permission to use the streets and public ways for such a length of time, and to make such large investments upon the faith of such permissions, and the public interests being affected, the appellee should have a reasonable time and opportunity to remove its property from the streets and public ways and places of the city, or to acquire a franchise, and in view of the large interests affected it should have one year from the rendition of the judgment, in accordance with this opinion, to remove its property or to acquire a franchise. Telephone Co. v. City of Frankfort, 141 Ky. 591, 133 S. W. 564.

STEARNS COAL & LUMBER CO. et al. v.
COMMONWEALTH.

(Court of Appeals of Kentucky. Nov. 24, 1915.)
1. TRIAL 370-TRIAL BY COURT-SUBMIS-
SION OF ISSUES TO JURY.

All persons are entitled to have controversies determined by the tribunals provided by law for the trial thereof, and in accordance with the law of the land, and in a special proceeding, created by statute failing to provide for trial by jury, the court, over the objection of a party, may not submit the issues to a jury.

[Ed. Note.-For other cases, see Trial, Cent.

Dig. §§ 881, 885; Dec. Dig. 370.]
2. TAXATION 3624-ASSESSMENT OF TAX-
ES-OMITTED PROPERTY-PROCEEDINGS.

A proceeding under Ky. St. c. 108, art. 17,
for the assessment of property omitted, is a
special proceeding, and the judge of the county
court acts in a ministerial capacity, though his
judgment is the judgment of a court, and, to the
extent of determining whether the property has
been omitted, and the value thereof, he acts ju-
dicially within the rule applicable to the cir-
county court.
cuit court on appeal from a judgment of the

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 1164, 1319-1323; Dec. Dig. 3624.]

3. TAXATION 3624-ASSESSMENT OF TAXES-OMITTED PROPERTY-PROCEEDINGS. Under Ky. St. § 4260, providing for the assessment of omitted property, and authorizing either party to appeal from the decision of the county court to the circuit court, and then to and, declaring that if the court shall decide that the Court of Appeals as in other civil cases, the property is liable to assessment and has been omitted, the clerk of the court shall enter to the submission of the issues to a jury, and judgment, a party to a proceeding may object where he so objects, the court must proceed without a jury, or its judgment will be errone

ous.

Cent. Dig. §§ 1164, 1319-1323; Dec. Dig. [Ed. Note.-For other cases, see Taxation, East 3624.1

4. JURY 10-TRIAL BY JURY-CONSTITUTIONAL RIGHT.

The constitutional right of a jury trial exists only where by the common law a jury trial was customarily had, and the right to trial by jury means a trial according to the course of the common law.

[Ed. Note. For other cases, see Jury, Cent.
Dig. §§ 15, 16, 272; Dec. Dig. 10.1
Appeal from Circuit Court, Whitley
County.

[15, 16] The petition of R. W. Lisanby to be made a party plaintiff in this action was be made a party plaintiff in this action was properly rejected. The city as a corporate entity was to maintain this suit for an infraction of its rights, and its petition contained all the causes of action, and sought all the relief, which the petition of Lisanby alleged or sought. He could not as a citizen of the city maintain a suit, which was al- Consolidated actions by the Commonwealth ready being prosecuted by the city, upon the of Kentucky, by a revenue agent, against ground that the officers of the city might the Stearns Coal & Lumber Company, the thereafter conclude to discontinue the suit. Stearns Coal Company, and the Stearns) The petition offered to be filed contained Lumber Company. From a judgment for

the Commonwealth, defendants appeal. Re-ley county for collection of the taxes due versed and remanded.

See, also, 163 Ky. 837, 174 S. W. 771.

J. N. Sharp, of Knoxville, Tenn., and J. P. Hobson & Son, of Frankfort, for appellants. Henry C. Gillis, of Williamsburg, for appellee.

thereon. Answers were filed in the name of the various companies which were made defendants in the statements, respectively, and by agreement of parties the proceedings were transferred to the Whitley circuit court for transferred to the Whitley circuit court for trial, and by further agreement were consolidated and agreed to be heard and tried together under the style of Commonwealth of Kentucky, by etc., against the Stearns Coal Company, Limited, Stearns Lumber Company, and Stearns Coal & Lumber Com

that if the property owned by the companies was listed by either of them for taxation for any year, it should be considered as having been properly listed, and in the event the court should adjudge that either one of the companies had failed to list for taxation any property owned by either of them for either of the years, it should be listed as the property of the Stearns Coal & Lumber Company.

HURT, J. This proceeding consists of three special proceedings instituted in the county court of Whitley county, in the name of the commonwealth of Kentucky, by one of its rev-pany, and by further agreement it was agreed enue agents. One of the proceedings was against the Stearns Coal Company, Limited, another was against the Stearns Lumber Company, and the other against the Stearns Coal & Lumber Company. The purpose of the proceedings was to cause property alleged to be owned by these companies in Whitley county, and which had been omitted from assessment, to be assessed for the purpose of state and county taxation. The statement filed against the Stearns Coal Company, LimUpon the calling of the consolidated cases ited, alleged that the appellant had in its for trial, without any one having requested possession and was the owner of a lease it to be done, the court directed that a jury from Roberta S. Bryant to it, consisting of be impaneled to hear and determine the isthe right to mine coal on 26,885 acres of sues in the case. Each of the defendants obland, and that the lease was of the value jected to the impaneling of the jury and to of $1,611,300, and, also, machinery, houses, the submission of the questions and issues and equipment and engines which were used in the case to a jury, and moved the court in the business of mining coal of the value of to hear and try the case without the inter$100,000, and that the company had failed vention of a jury. The court overruled the to list the property for taxation for the years objections of the defendants, and ordered a 1906, 1907, 1908, 1909, and 1910, and prayed jury to be impaneled, to which ruling the dethe court to fix the value of the property fendants objected. Thereupon the evidence and cause it to be listed for taxation. The was heard, and the court instructed the statement against the Stearns Lumber Com-jury, and the jury returned a verdict, to the pany alleged that on the 1st day of Septem-effect that the appellants had failed for cérber, 1906, it was the owner of standing tim-tain years to list for taxation large bodies ber on 10,000 acres of land, which had been conveyed to the company by a deed from Roberta S. Bryant, and was of the value of $30,000, and also personal property of various kinds, office fixtures, etc., which were located on the town site of Stearns, Ky., and were of the value of $100,000; that the appellant owned this property on the 1st day of September, 1906, and on the same day in 1907, 1908, and 1909, respectively, and had omitted to list the same for taxation for each of those years, and asked the court to value the property and to have it to be certified to the sheriff for the purpose of collecting the taxes thereon. The statement against the Stearns Coal & Lumber Company alleged that it owned, on the 1st day of September, 1910, various articles of personal property located on the town site of Stearns, Ky., and of the value of $100,000, and also a lease on 26,855 acres of coal lands from Roberta S. Bryant, and of the value of $500,000, and of houses, machinery, tools, and [1] It is insisted as a ground for a reequipment for mining coal on the leased land versal of the judgment that the court erred to the value of $100,000, and that it had to the prejudice of the appellants in causing omitted to list this property for taxation, a jury to be impaneled and submitting the and asked that the court fix the value and issues to it for trial and entering a judg

of land and coal mines and personal property, and fixing values thereon. The court thereupon entered a judgment, following the verdict of the jury, and ordering the property found by the jury to have been omitted from assessment, for taxation by the appellants to be assessed, and directing that it be certified to the sheriff for the collection of the taxes adjudged to be due thereon for the various years embraced by the statements.

At the close of all the evidence the appellants moved the court to discharge the jury and to pass upon the issues of the case itself, which the court overruled, and the appellants excepted. The appellants, having filed grounds, moved the court to set aside the verdict of the jury and judgment of the court and to grant them a new trial, but the court overruled their motion, to which appellants excepted, and prayed an appeal to this court, which was granted.

jury. It may be said that as a matter of common right all persons and corporations are entitled to have such controversies as they may enter into to be determined by the tribunals provided by law for the trial of such matters and in accordance with the law of the land.

[2] The proceeding by revenue agents to cause property to be listed for taxation, which has been omitted by the owners, the assessors, or boards of supervisors, is a special proceeding provided for by article 17, c. 108, Ky. St. It may, further, be said that in a proceeding of this character the judge of the county court does not act in a judicial capacity, but in a ministerial capacity, and as such is only one of the agencies provided by law for assessing property for taxation. His judgment, however, is the judgment of a court, and, to the extent of determining whether property has been assessed or omitted and its value, he acts judicially, and the same rule would apply to the circuit court upon an appeal from a judgment of the county court. Baldwin v. Shine, 84 Ky. 502, 2 S. W. 164, 8 Ky. Law Rep. 496; Baldwin v. Hewitt, 88 Ky. 673, 11 S. W. 803, 11 Ky. Law Rep. 199; Cassidy v. Young, 92 Ky. 227, 17 S. W. 485, 13 Ky. Law Rep. 512; Hoke v. Commonwealth, 79 Ky. 567; Commonwealth v. Ryan, 126 Ky. 649, 104 S. W. 727, 31 Ky. Law Rep. 1069; Commonwealth, etc., v. Weissinger, 143 Ky. 368, 136 S. W.

875.

[3] In setting out the method by which property may be assessed for taxation upon the suggestion of the revenue agent, section 4260, Ky. St., provides for the filing in the clerk's office of the county a statement containing a description of the value of the property proposed to be assessed and the name and place of the residence of the owner or person in the possession of the property and the year or years for which the property is proposed to be assessed, and provides that the clerk shall issue a summons against the owner, and, after the service by the sheriff, the statute provides as follows:

*

ing provided for by statute, and defining the method of procedure and who shall have authority to make the assessment, it would seem that the proceeding would have to conform in all respects to the requirements of the statute. The statute provides that the court shall determine whether the property ought to be assessed and the value of the property which has been omitted from assessment, and shall perform all other duties in connection with the proceeding.

The provisions of the statute nowhere give room for the intervention of a jury, or provide in any place that the questions in issue may be heard or tried by a jury. There are many reasons why the legislative authority imposed the duties required by this statute upon the judge of the court alone, but it is not necessary to enumerate them here. Suffice it to say that under the provisions of the statute no litigant is required, in this character of proceeding, to submit the issues of his case to the determination of a jury. This is not a case of equitable cognizance where the court has a right to call a jury to pass upon the questions of fact in an advisory character. To deny to a litigant in a case of this kind a trial by jury would not be an infringement of the ancient right of trial by jury.

[4] The constitutional right of a jury trial exists only in cases where, by the common law, a jury trial was customarily had and the constitutional right to a trial by jury means a trial according to the course of the common law. Carder v. Weisenburgh, 95 Ky. 135, 23 S. W. 964, 15 Ky. Law Rep. 497; Comingor v. Louisville Trust Co., 128 Ky. 697, 108 S. W. 950, 117 S. W. 681, 33 Ky. Law Rep. 53, 884, 129 Am. St. Rep. 322; Rieger v. Schulte et al., 151 Ky. 129, 151 S. W. 395. The authority for this proceeding, being founded upon a recent statute, is, of course, a proceeding unknown to the common law. Besides, in the case at bar, the commonwealth did not request a jury, and the appellant opposed it. It was the duty of the

court to have proceeded without the interven"At the next regular term of the county court tion of a jury, to perform the duties required after the summons has been served five days, if it shall appear to the court that the property is of it by law in such cases, especially when liable for taxation and has not been assessed, one of the litigants objected to the jury trial. the court shall enter an order fixing the value The construction which has been placed upthereof at a fair cash value, estimated as required by law; if not liable for taxation, he shall on this statute here seems to be that adoptmake an order to that effect, etc. The ed by all the courts of the commonwealth up judgment of the court shall have the same force to this time. Therefore the appellant did and effect as the judgment of the court in civil not have a trial as provided by law. Either party may appeal from the decision of the county court to the circuit court and then to the court of appeals, as in other civil **If the court shall decide that the property is liable to assessment, and has not been assessed, the clerk of the court shall enter a judgment on a book kept for that purpose, etc. * *

cases.

*

The judgment is reversed, and the case remanded, for proceedings consistent with this opinion.

The various other questions insisted upon by the appellant are not necessary now to be determined, as they chiefly grow out of the There is no other authority for this char-proceedings of the jury trial, and such as did acter of proceeding except that contained in not arise from the jury trial were not passthe statute, supra. Being a special proceed-ed upon by the court below.

HUDSON ENGINEERING CO. et al.
V. SHAW.

SHAW v. HUDSON ENGINEERING
CO. et al.

(Court of Appeals of Kentucky. Nov. 24, 1915.)
1. NEW TRIAL 97-GROUNDS-SURPRISE-
NECESSITY FOR OBJECTION AT TRIAL.

Reversal will not be granted on the ground of suprise, where no objection was made when the evidence constituting the alleged suprise was offered, and no motion was made for postponement or continuance of the case; for a party cannot take chances on a verdict in his favor and afterwards on adverse verdict claim new trial on the ground of surprise.

[Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 195-198; Dec. Dig. 97.]

6. ATTACHMENT 337-RELEASE BOND-LIABILITY SUBSEQUENT AMENDMENT OF PETITION-EFFECT.

Although after the defendant surety company gives its bond, under Civ. Code Prac. § 221, to release attached property, the plaintiff amends his petition, thereby seeking to recover charged from all liability, for its liability cana greater sum, the surety company is not disnot be increased by the amendment.

From

[Ed. Note.-For other cases, see Attachment, Cent. Dig. §§ 1213-1222; Dec. Dig. 337.] Appeal from Circuit Court, Kenton County, Common Law and Equity Division. Action by Clifford Shaw against the Hudson Engineering Company and the Fidelity & Deposit Company of Maryland. judgment partially in favor of plaintiff, plaintiff and defendant Fidelity & Deposit Company of Maryland appeal. Affirmed in part. 2. NEW TRIAL 102 GROUNDS - NEWLY DISCOVERED EVIDENCE-DILIGENCE. Chas. A. J. Walker and W. M. Locke, both Where, in an action on a contract, the de- of Cincinnati, Ohio, for Shaw. Myers & Howfendant could have easily discovered the evi- ard, of Covington, and Gordon, Morrill & dence before the trial, and the case was pending Ginter and David Davis, all of Cincinnati, for 31⁄2 years and he failed to produce the evidence, he is not entitled to a new trial on the Ohio, for Fidelity & Deposit Co. and Hudson ground of newly discovered evidence, since he Engineering Co. did not use reasonable diligence to produce it at the trial.

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191

FORTHCOMING

4. ATTACHMENT
BONDS-EFFECT.
Under Civ. Code Prac. § 214, providing that
the sheriff may deliver attached property to the
person in whose possession it is found upon
such person's execution of a bond to the plaintff
with sufficient sureties, to the effect that the
obligors are bound, in double the value of the
property, that the defendant will perform the
judgment, or that the property or its value will
be forthcoming and subject to the order of the
court, the bond executed is only an obligation to
produce the property; the lien of the attach-
ment and the power of the court over the prop-
erty continuing as if the attachment were still
in force.

[Ed. Note. For other cases, see Attachment, Cent. Dig. §§ 633-636; Dec. Dig. 191.]

CLAY, C. These two appeals grew out of the same transaction and will be considered in one opinion. Clifford Shaw invented certain apparatus for raising water and other liquids and secured patents thereon. These patents were regularly assigned and transferred to the Bacon Air Lift Company, in consideration of an alleged agreement on the part of the company to employ Shaw at a salary of $200 per month and expenses, so long as the company used said patents. In 1903, the Bacon Air Lift Company sold and transferred all of its property of every kind to the Hudson Engineering & Contracting Company, which in turn sold and transferred its property to the Hudson Engineering Company. In each case each vendee took over all of the assets and assumed all of the liabilities of its vendor. According to Shaw's evidence, he remained in the employ of the three companies for a number of years, receiving a salary of $200 a month and expenses for the entire time, with the exception of certain periods when he, together with other officers and employés of the company, remitted a portion of their salary to help the company out. On June 1, 1910, the Hudson Entime there was due him for services and exgineering Company discharged him. At that penses $204.75. Shaw protested and asked

5. ATTACHMENT 338-FORTHCOMING BONDS to be continued under his contract, but the - LIABILITY - SUBSEQUENT AMENDMENT OF PETITION-EFFECT.

Where defendant gave a bond, under Civ. Code Prac. § 221, to release attached property in an action to recover $880, and plaintiff thereafter amended seeking by the amendment to recover $6,500, the surety was not liable for the full amount of the final judgment for $6,500; such liability not being within the contemplation of the parties.

[Ed. Note.-For other cases, see Attachment, Cent. Dig. §§ 1290-1303; Dec. Dig. 338.]

company refused to give him employment. After the termination of the contract, the company kept the patents and never offered to return or transfer them to Shaw. After his discharge, Shaw was able to earn only about $75 a month. This suit was filed on October 2, 1911. Shaw did not ask for damages for breach of the contract, but sued for the installments of salary and expense then due, amounting to $881.79, for which judg

affidavit of John J. Boyd, president of the Hudson Engineering Company, to the effect that, if he had known in advance of the trial that Shaw would claim that Young was present at the time of making the contract of employment, he would have arranged either to have had Young present and testify in the case, or would have had his deposition taken. The argument is made that the petition was predicated on a contract partly in writing and partly oral. Filed with the petition was a written contract reciting that Shaw had agreed to assign the patents to the Bacon Air Lift Company, and that that company had agreed to employ Shaw and "pay him therefor a certain sum per month which had been mutually agreed upon." This contract was signed by the Bacon Air Lift Company, "by Edward A. Hosmer." Because of these facts, the defendant was led to believe that plaintiff would prove an oral contract made with Hosmer and not with the directors of the company. Not being apprised of the fact that plaintiff would claim that Young was present when the contract was made, the claim is that there is no failure of diligence on defendant's part in not having taken Young's deposition or having him present at the trial. As a matter of fact, however, plaintiff relied on a contract made with the company. It was but natural that he should prove that this contract was made with the board of directors. Defendant was not jus

ment was prayed. At the same time Shaw obtained an order of attachment, which was levied by the sheriff of Kenton county on certain property belonging to the defendant Hudson Engineering Company. On December 5, 1911, and before plaintiff's petition was amended, the defendant, with the Fidelity & Deposit Company of Maryland as surety, executed to plaintiff a bond, by which it agreed to perform the judgment of the court rendered in the action. Subsequently, plaintiff filed various amended and supplemental petitions to recover on the installments of salary due at the time they were filed. On February 5, 1913, plaintiff recovered of the defendant Hudson Engineering Company a judgment for the sum of $204.75, with interest. On October 30, 1914, he recovered a further judgment in the sum of $6,500, with interest from that date. From this judgment the Hudson Engineering Company appeals. After judgment was rendered, plaintiff sought to hold the surety company liable for the full amount of the last judgment. The trial court held that the surety company was liable only for the amount claimed in the original petition, and was not liable for any sums claimed by amended and supplemental petitions filed subsequent to the execution of the bond and without notice to the surety. From this judgment plaintiff appeals, on the ground that the surety is liable for the whole amount of the final judgment rendered in the action. The surety company prosecutes a cross-ap-tified in assuming that the contract was made peal, on the ground that the action of plaintiff, in seeking to increase the amount for which the surety company was liable, released the surety company from all liability.

We shall first consider the appeal of the Hudson Engineering Company. A reversal is asked on the ground of surprise, newly discovered evidence, and error in the instructions.

with Hosmer alone. It should have anticipated that plaintiff would attempt to prove that the contract was made with the board of directors and have been prepared to rebut this proof by the testimony of the directors. As the case was pending for 31⁄2 years, ample opportunity was given the defendant to consult the members of the board who made the contract, and, if thought proper, to [1] It is unnecessary to set out the facts take their depositions or have them present on which the claim of surprise is based. at the trial. A party is not entitled to a When the evidence constituting the surprise new trial because of newly discovered eviwas offered, the attention of the court was dence, unless he uses reasonable diligence to not called to the fact. No motion was made produce it at the trial. Olds Motor Works for a postponement or continuance of the case. v. Shaffer, 145 Ky. 616, 140 S. W. 1047, 37 Under the circumstances, a party cannot take L. R. A. (N. S.) 560, Ann. Cas. 1913B, 689; chances on a verdict in his favor and after-Houston, Stanwood & Gamble v. Schneider, wards claim a new trial on the ground of 148 Ky. 651, 147 S. W. 371. In the present surprise. Thompson v. Porter, 4 Bibb, 70; case no diligence was shown. The trial court Remley v. I. C. R. R. Co., 151 Ky. 796, 152 did not err in refusing a new trial on the S. W. 973; Kentucky Distilleries & Ware- ground of newly discovered evidence. house Co. v. Wells, 149 Ky. 275, 148 S. W. 375; Liverpool & London & Globe Insurance Co. v. Wright, 158 Ky. 290, 164 S. W. 952.

[2] The newly discovered evidence relied on is the affidavit of George R. Young, who, together with Shaw, owned an interest in the patents, to the effect that the Bacon Air Lift Company did not make a contract with Shaw which was to continue as long as the Bacon Air Lift Company used the patents, and that he would give his deposition to this effect.

[3] The defendant offered evidence to the effect that, with the exception of two contracts in Kentucky, it did not use the patents and inventions acquired from plaintiff after June, 1910, and that since October, 1911, it had never made any use of the patents or inventions. The trial court instructed the jury, in substance, that the failure of the defendant to retransfer the patents and inventions to the plaintiff, or offer to do so, amounted to a continued use of the patents

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