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Section 12 of the Code (Kentucky) provides that, in an equitable action, either party may, by motion, have the case transferred to the ordinary docket for the trial of any issue concerning which he is entitled to a jury trial, but such a motion must be seasonably made, and a failure to make it within a reasonable time will be treated as a waiver of the right to demand a jury trial, and whether or not there has been an unreasonable delay in making the motion to transfer is a question to be decided by the trial court in the exercise of a sound discretion.
The debtor executed the notes to secure payment of a purchase of stock from the creditor. The creditor was the president of the corporation for which the stock was issued. The creditor retained a lien on the stock. The creditor brought the action when the debtor defaulted in making payment. The debtor answered that the creditor falsely and fraudulently misrepresented the value of the stock. The creditor denied the allegations of the answer. The debtor filed an amended answer and counterclaim asserting additional facts with respect to the allegations of fraud. The debtor objected to the trial court's overruling of his motions to transfer to the ordinary docket and for a continuance.
Did the trial court err in refusing to transfer the cause to the ordinary docket?
The court upheld the trial court's judgment. The court stated that the amended answer and counterclaim did not change the issues; therefore, the issues were completed 30 days before the commencement of the trial court's term. The court concluded that the trial court did not abuse its discretion in refusing to transfer the cause to the ordinary docket because the case had been fully prepared to be tried in equity and the debtor's motion to transfer was not seasonable.