Peckham v. Jorgensen

Citations

• 100 Kan. 368
• 164 P. 298
• 1917 Kan. LEXIS 329

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Action — To Set Aside Appointment of Administrator — No Jury Demandadle. In an appeal from a decision of the probate court wherein that court refused to set aside an appointment of an administrator on the alleged ground that the deceased was not at the time of his death a resident of the county in which the appointment was made a jury is not demandable as a matter of right.</p> <p>2. Same — Special Questions Submitted to Jury■ — Instructions. Where a jury is called in such a case to pass upon disputed questions of fact the court may instruct them as to the rules governing the submission and determination of special questions of fact, but neither party has a right to demand the giving of instructions.</p> <p>8. Same — Jury in Equity Case — Instructions—Findings. If the case had been tried as though a jury trial could be demanded as a matter of right, and the judgment of the court had been rendered without giving independent consideration to the facts, error in charging the jury might become important; or if the rulings in charging the jury showed that the court had misconceived the law applicable to the case or decided it upon the wrong theory, to the prejudice of a party, error might be predicated on them.</p> <p>4. Same — Findings of Jury Advisory Only. Upon the record it is found that the court did not treat or dispose of the case as one triable by a jury as a matter of right, but while approving the special findings returned by the jury it made findings of its own on which its judgment was rested.</p> <p>5. Same — Placing of Burden of Proof — Not Prejudicial. The placing of the burden of proof, even if erroneously done, in a case triable by the court, and where the parties were permitted to and did produce all of their testimony upon the contested questions, can not be treated as a ground of reversal.</p>