Barker v. Breslin

329 S.W.2d 578

• Court: Court of Appeals of Kentucky
• Decided: December 4, 1959
• Status: Published

Opinion

CLAY, Commissioner.

This is a petition for an order of prohibition and mandamus to require respondent, Hon. John A. Breslin, Jr., as circuit judge, to permit petitioners to have a jury trial in a case now pending before him.

This is a libel suit. It was called for trial before a jury. After eight days of oral testimony, the court on its own initiative, and under the provisions of CR 39.01 (3), discharged the jury and continued the case for trial before the court. The basis of this ruling was that the trial had developed “such a great detail of facts” and “involvement of myriad rights and defenses” that the court found it was impractical for a jury intelligently to try the case.

This original proceeding seeks extraordinary relief, which is only granted by this Court under unusual circumstances where it is apparent that a great injustice and irreparable injury will result to an applicant who has no adequate remedy by appeal or otherwise. Thompson v. Wood, Ky., 277 S.W.2d 472. The petition suggests lack of jurisdiction in the Estill Circuit Court, and alleges that the remedy by appeal might not be adequate. It seems clear the Estill Circuit Court had jurisdiction of this proceeding, and it also seems clear the question now raised can be reviewed on appeal, and that such remedy is adequate. While petitioners might be saved inconvenience and expense if we undertook at this stage of the proceeding to decide whether or not respondent has committed error, such considerations are not sufficient to warrant the extraordinary relief requested.

The motion for oral argument is denied. The attention of both parties is called to Commercial Union Assurance Co. v. Howard, 256 Ky. 363, 76 S.W.2d 246.

The prayer of the petition is denied.