
    GLAUBER v. AGEE DEPARTMENT STORES et al.
    No. 180.
    District Court, W. D. Kentucky, at Paducah.
    Dec. 26, 1939.
    Waller & Threlkeld, of Paducah, Ky., for plaintiff.
    C. C. Grassham, of Paducah, Ky., and Okey P. Keadle, of Huntington, W. Va., for defendant.
   MILLER, District Judge.

Plaintiff’s motion for a jury trial is objected to by defendants on the ground (1) that the motion comes too late; and (2) the action is an equitable one in which the plaintiff is not entitled to a trial by jury.

There is no question that if the action be construed as an equitable one the plaintiff is not entitled to a jury trial. The petition seeks the rescission of a contract between the plaintiff and defendant on the ground of fraud. Such an action is essentially an equitable one. However, the amended petition apparently abandons this type of relief and asks for.damages suffered by_reason__of the fraud. Although the shift from a claim of equitable relief to a claim for common law relief is not definitely set up by the amended petition, yet the Court construes the amended petition as abandoning any claim for rescission of the contract and asking solely for damages suffered by reason of the alleged fraud. Accordingly, the request for a jury trial is made at the time when the plaintiff was first entitled to make such a request, and is within the time provided by Section 38 (b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

The motion for a jury trial is sustained.  