Thompson v. Same

In November, 1950, the appellants, James P. Kaze and wife, purchased of the appellees, James W. Compton and Sarah Compton, a residence on Tuberose Avenue in the southern suburbs of Louisville for $7,100. In this action of deceit for damages based on the concealment of the fact that a twelve inch drain tile ran beneath the house, which caused water to accumulate under the house and in the yard, a verdict for the plaintiffs for $2,600 was returned. The court sustained a motion for a new trial and overruled several motions of the plaintiffs seeking to have the judgment reinstated or the case set down for another trial. There is no motion for a summary judgment in the record, but an order recites that the defendants moved for such a judgment and the court sustained it upon a consideration of the pleadings and evidence heard on the trial. He concluded that there was no "genuine issue as to any material fact and no controversial question as a matter of fact" and that the defendants were entitled to a judgment as a matter of law. CR 56.03; Watts v. Carrs Fork Coal Co., Ky., 275 S.W.2d 431. The conclusion rests on the view that the plaintiffs had relied only on proof that there was a drainage tile under the house which the defendants knew about but had not disclosed to them, and that water had come from this tile under the house. The court was of the opinion that to recover damages the plaintiffs must have pleaded and proved that the defendants knew there was a defect in the drainage tile and knew water would escape from it and accumulate under the house; moreover, that the plaintiffs had not proved that the water had in fact come from this tiling. The appellants construe CR 56.03 as requiring an interval of at least ten days after service of a motion for a summary judgment, hence, submit the court was without authority to render the same on the day the motion was made.