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a. A charge against a candidate for the legislature that he had, when previously a can-
didate for the same office, accepted a bribe of $300 from his opponent to quit the race, is
not actionable. Field v. Colson, 93 Ky., 347.

b. Slanderous words may be complained of in one paragraph of the plaintiff's petition
as having been orally published and in another paragraph as having been published in a
newspaper. Hargan v. Purdy, 93 Ky., 424.

{ 125, subs. 1. Describing land in an action for its subjection to a demand of


a. In an action brought in Estill county by T's administrator to sell his decedent's land

to pay his debts, the land being described in the petition as being a tract of . . acres,

lying in Estill county, of which said T was seized and possessed, and the same whereon
he resided at the time of his death; the court ordered a sale, which the commissioner
reported as made, and the court ordered a deed to the purchasers, pursuant to said de-
scription; "but the commissioner conveyed by deed to the purchasers two tracts of land,
by metes and bounds, lying in Estill and Powell counties, one containing 6,919 acres, and
the other containing 500 acres" [which deeds it must be assumed were approved by the
court]. In an action for the land in Powell county, in which the purchasers relied on the
commissioner's deed, it was held that " there is no doubt that the action of James Town-
send's administrator to sell the land was a proceeding in rem. In such an action it is as
essential for the court to have actual jurisdiction of the particular thing as it is to have
actual jurisdiction of the parties. . . . Jurisdiction of the former can only be acquired
by bringing the thing before the court in the manner prescribed by law, to-wit: 'A peti-
tion for the recovery of land, or for its subjection to a demand of the plaintiff, must de-
scribe it so that it may be identified' (J 125, Civil Code);" and that, as the land in Powell
county was not thus brought before the court, the proceedings with reference thereto were
voii. Blackwell, £rV., v. Townsend, &>c, 91 Ky., 609.

I submit, 1, that § 125 did not apply to the case, as the administrator was not seeking
to subject the land "to a demand of the plaintiff;" 2, that the Estill circuit court had
jurisdiction of the. land in Powell county under g 65 ; and 3, that, as the Estill court had
jurisdiction of the subject of the action, its proceedings, however erroneous, were not void.

b. It is sufficient if the land is specifically described in an exhibit filed with the petition.
De Haven v. De Haven, 20 Ky. L. Rep., 663, 665.

\ 125, subs. 2. Pleadings and proof in an action for land.

a. As to the probable necessity, in some cases, of an answer averring title in the defend-
ant, see note {b), ante, page 651 ; as to the necessity of denying plaintiff's title in such
affirmative answer, see note (a) to Form 109, ante, page 647 ; and as to the burden of proof
upon such negative and affirmative defences, see note d, post, to \ 526.

b. Unless the defendant state that he claims the land sued for, he can not assert his
title or possession ; and all the plaintiff need prove is such a title as would give him a right
of possession, and that the defendant is in possession of the land sued for. Brent v. Long,
99 Ky., 245, 252.

§126 {a). Traverse must be specific.

See Ward v. Edge, 100 Ky., 757, 767.

\ 126, subs. 4. Allegations of value, damages, etc.

In an action in ejectment an allegation as to the amount of damage sustained must be
proved though not traversed. Burchett v. Herald, 98 Ky., 530, 532. In Merchants, 6v.,
Co. v. Hoskins, 19 Ky. L. Rep., 800, it was held that an allegation as to the value of goods
need not be proved, upon the ground that the bill of lading created an implied promise
to pay the value if the goods were not safely delivered.

See Z. 6* N. R. R. Co. v. Hartwell, 99 Ky., 439.

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I 128. Filing of writings relied on as evidence.

This section does not relate to writings which a party is required by J 120 to file as the
foundation of his action or defence. Gilbert v. Bamberger ; Bloom <&• Co., 19 Ky. Z. Rep.,

i«33» 1S36.

i 132. Amendment before answer.

Where a petition is amended (before answer) by leave of court during term time, notice
to the defendant is unnecessary ; the notice required by the Code applies only to amend-
ments filed within five days of the beginning of the term at which the defendant is sum-
moned to answer. Bryant v. Cooney, 19 Ky, L. Rep., 423.

$ 134. Amendments of pleadings.

a. Orders of the circuit court, in refusing to allow amended petitions to be filed, were
approved in 89 Ky., 370; 90 Id., 279-80; and Carter v. West, &*c, 14 Ky. L. Rep., 391.

Like orders, in refusing to allow amended answers to be filed, were approved in 91
Ky., 365; Louisville Underwriters v. Pence, 93 Ky., 96; and Owensboro, &*c, R. R. Co. x.
Harrison, 94 Ky., 408.

And a like order, in allowing an amended answer to be filed, was approved in 91
Ky., 446.

b. Neither a party to an action nor any one else, though a married woman, should be
allowed to file an amended pleading after the term when a final judgment was rendered.
88 Ky., 342-43; 90 Id., 541-42; Davis v. Jenkins, &c, 93 Ky., 353. But it was held that
a so-called amended petition, which stated that a lot sold under an order of court was
improperly described in the petition and judgment, and giving the true description, and
asking that the sale be set aside, was properly allowed to be filed after such term, it being,
in effect, an exception to the report of sale. Johnson v. Johnson, &c., 88 Ky., 275.

c. A defective petition may be cured by the trial of a case upon evidence which is
admitted without objection. L. & N. R. R. Co. v. Taylor, 92 Ky., 55.

d. This section applies to cases of contested elections as well as to regular actions;
and while the contestants could not set up by amendment new grounds not stated in the
notice of contest, they could by amendment make definite the charge on which the con-
test was based. Wilson v. Hines, 99 Ky., 221, 227.

e. A warrant sued out for forcible entry may be amended before trial or issue joined.
Bailey v. Kelley, 18 Ky. L. Rep., 718.

See Commonwealth v. Cantrell, 20 Ky. L. Rep., 24*

$ 135. Supplemental pleadings.

In 90 Ky., 258, it was held that plaintiff may, under this section, by supplemental
pleading, allege that other notes of the same series, and given for the same consideration
as the one sued on, have matured during the pendency of the action and have judgment
therefor; but that a mere suggestion on record of such fact does not entitle him to a judg-
ment on notes not due when the action was commenced, except when there is a lien on
property to secure them. I submit, however, that such suggestion can not entitle the
plaintiff to a personal judgment on such lien notes, and can not entitle him even to an order
of sale therefor unless they were stated in the petition.

$ 138. Verification.

Although Ky. Stat., \ 473, provides that the defence of non est factum can only be made
by answer under oath, yet the plaintiff must object to the want of verification before the
commencement of the trial or it is waived. Myers v. Douglass, 99 Ky., 267.

\ 154. Issuance of bond.

In Robertson v. Robertson, 100 Ky., 696, it was held that under Code, \ 153, and Ky. Slat.,
I 2124, a wife to secure alimony for herself and maintenance of their children, may obtaia
an order of arrest for her husband, without giving bond.

i 168. Discharge of insolvent debtor.

The circuit court has no jurisdiction to discharge an insolvent debtor, and its order to

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that effect is void and does not release the bail ; nor can the .debtor apply for such a dis-
charge even to the proper authorities (1. e., two justices, county judge, or police judge),
until he has been surrendered by the bail or arrested under ca. sa. Sowle M'f'g Co. v.
Bernard \ 100 Ry., 658.

\ 178. It is the better practice that the grounds for or against provisional remedies be
set up in affidavits and not in the pleadings. Hale v. Grogan, 99 Ry., 170, 175.

\ 194. Property liable to and ground for atfachmbnt.

A pensioner indorsed a check for a pension to another, who, for him, drew the money
and paid it for land which was conveyed to the pensioner's wife; held, that the land was
liable for pensioner's previously contracted debts. 90 Ry., 163.

- \ 194, subd. I, subs. 5. An attachment may be had on this ground at the commence-
ment of the suit and it is not necessary first to attempt service on the defendant. Johnson
v. Kaufman, 20 Ry. L. Rep., 684.

\ 194, subs. 7. As to substantial compliance with the language required, see Cabell, &*e.,
v. Patterson, 98 Ry., 520, 523.

} 194, subd. II. Attachment on the ground that defendant has no property


In an action on a note of two defendants who were sued and served with process, it
was held that the property of neither could be attached, unless the affidavit as to want of
property, &c, applied to both. Dunn's trustee v. McAlpin & Co., 90 Ry %% 78. See also 1 7
Ky. L. Rep., 64.

\ 196. Affidavit for attachment.

a. The plaintiff's petition having stated grounds for an attachment, verification of the
petition by his attorney, during the plaintiff's absence from the county, was held to be
sufficient. 88 Ry., 112.

b. Affidavit that •« He says that statements in the foregoing petition are true" was held
to be sufficient, the omission of the word " the" being •• manifestly," in the opinion -of the
court, "a mere omission of the draftsman." 88 Ry., 113. Query, as it may have been
omitted intentionally.

§ 199. Order of attachment.

Such order must be regarded as running in the name of the Commonwealth, if it be
shown that it was indorsed on a summons so running. Northern Bank of Ky. v. Hunt's
heirs, 93 Ky. t 67.

§ 207. Executing the order of attachment on the master commissioner in whose hands
the funds are, is insufficient; it must be served on the clerk. Bottom v. McFerran, 19 Ky.
L. Rep., 1266.

\ 212. Where an order of attachment was delivered to the sheriff, but before it was
levied the defendant made and recorded a deed of assignment, it was held that the attach-
ment prevailed because it created a lien from the time of delivery to the sheriff. Exchange
Bank v. Gillispie, 19 Ky. L. Rep., 1317* This is true only of property subject to execution.

\ 214. See Connor v. Williams, 17 Ry. L. Rep., 73.

\ 230. Affidavit before selling realty.

The failure to file such affidavit does not render the judgment void or affect the lien
acquired by the attachment. Fremd v. Ireland, 17 Ay. L. Rep., 1142.

$ 238, 239, 240. Attachment before debt is due.

An order of attachment issued by the circuit court clerk, prior to April 5, 1888, for a
debt not due, and the attachment-bond then taken by him, were void, and said bond did
not authorize the issuing of a new attachment by the clerk under an order of the county-
judge. 88 Ry., 548-49.

Since the amendment of April, 1888, the clerk may issue an attachment on a debt not
due; nor is any independent order granting the attachment necessary. Ourbacker, Gil*
more & Co. v. Clajlin, 96 Ry., 235, 239.

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J 249. Attachment of specific personal property.

a. See Guar, Sc tt & Co. v. Lyon, 99 Ay. 9 678.

b. Such an attachment may be had before the maturity of the debt, bchnabel v. Jacob*,
49 S. W. Rep., 774.

j 266. Amount in controversy.

On an appeal from an order dismissing an attachment, the amount sued for is the amount
involved. Schnabel v. Jacobs ; 49 S. W. Rep., 774.
\ 268. Amendments of attachments.

a. Though the amendment of a defective affidavit does not relate back, if an attachment
be issued on a sufficient affidavit but a defective petition, an amendment of the petition
which perfects the original cause of action makes the attachment valid ab initio, Bamberger,
&c., v. Afoayon, 91 Ky., 517. See also Northern Lake Ice Co. v. Orr t 19 Ky. L. Rep., 1634.

b. If an attachment is erroneou-ly discharged it is not necessary to apply to a judge of
the Court of Appeals to reinstate it; but after final judgment the Court of Appeals will re-
verse the order discharging the attachment and give the plaintiff priority over intervening
attachments. Cabell, &c. t v. Patterson, 98 Ky., 520, 523.

i 272. Injunctions.

When a county can sue for damages for an injury to its highway, it may sue in equity
to enjoin continuance of the injury, and in that action may have an inquiry as to damages
accrued. Greenup County v. M. & B. S. R. Co., 88 Kv., 549.

J 273. The power to grant an injunction is quasi judicial in its nature and can therefore
be exercised only by the clerk, and not by Ql deputy. Payton v. McQuown, 97 Ky., 757, 765.

\ 278. Actions on injunction-bonds generally.

A final decision that an injunction ought not to have been granted is equivalent to a
final judgment dissolving the injunction, upon which immediately follows a right of action
upon the injunction-bond. 88 Kv., 19.

2 985. Jurisdiction to enjoin judgments.

Proceedings on even a void judgment can be enjoined only in the court which rendered
the judgment. Jacobson v. Wemcrt, 19 Ky. L. Rep., 662.

{ 295. Actions on injunction-bonds to suspend proceedings on a judgment.

No action lies unless the court which dissolved the injunction assessed the damages:
Hay den' s adm'r v. Phillips' admW, 89 Ky., I.

}J 296, 297. Reinstatement of injunction.

There can be no reinstatement by an appellate judge of an injunction which has been
finally dissolved, though leave to apply therefor may have been granted by the court
rendering the judgment: the plaintiff's remedy is in an appeal to the Court of Appeals.
Pendergest, <5rV., v. Heekin, <5rY., 94 Ky., 384; FJizabetht non, &*c, R. Co. v; Ashland, <5rV.,
R. Co., Id., 478. See amendments of 1894, ante, pages 241a, 241b, and 484.

ii 298, 299. Receivers.

See Columbia, &c. % Co. v. Morgan, 19 Ky. L. Rep., 1761, 1763, as to the difference be-
tween the rights of a vendor and a mortgagee respectively to the rents and profits of an
estate in the hands of a receiver under these sections of the Code.

See L. cViV. R. R. Co. v. Eakins, 100 Aj.,756.

$ 299 to 302. Receiver of mortgaged property.

In an action to enforce a mortgage on personal property, it was held that the judge had
no power, during vacation, to order a sale of it by a receiver. Wilson v. Aultman &* Tay-
lor Co., 91 Ky. % 299. It was contended that the judge had such power, because the mort-
gage authorized the mortgagee to sell at a private sale, upon default of payment; but the
court, apparently not observing the fact that eh 63, art. \, \ 22, of the G. S., only applies
to real estate, held, on the authority of Kentucky Trust Co. v. Lewis, 82 Ky., 579, that sakl
authority was void ; which seems to be clearly erroneous, though I do not question th*
correctness of the decision of the Wilson case.

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J 317, subs. 5. Order of trial.

At the request of either party written instructions must be given. L. 6r* N. R. R. Co*
v. Banks, 17 Ky. L. Rep., 1065 ; Traders Bank v. Henry \ 49 S. W. Rep., 536.

§317, subs. 6. Litigants have the right to have their causes argued by counsel, and it
is error for the court to refuse to allow an argument because of the crowded state of the
docket. IVilken v. Exterkamp, 19 Ky. L. Rep., 1132.


a. The court did not err in permitting the jury to view the place where an accident
had occurred, pursuant to the request made after retiring to their room to consider of their
verdict. L. 9 N. A. & C. R. Co. v. Schick, 94 Ky., 191.

b. It is largely within the discretion of the court according to the peculiar facts of each
case whether or not the jury shall view the premises. Henderson, &c. t Co, v. Cosby, 19
Ky. L. Rep., 1851, 1853.


A refusal to instruct the jury at their request, may be reversible error. Mihoard Co. ▼.
Luigart, 19 Ky. L. Rep., 701.

As to examining a model or diagram, see L. <Sr* N. R. R. Co. v. Berry, 96 Ky., 608.

\ 329. Assessment of recovery.

Where the jury failed to assess the amount of recovery, the court can not render a judg-
ment on the verdict. L. & N. R. R. Co. v. Hartwell, 99 Ky., 436, 440.

J 332. Trial by court of law and facts in ordinary actions.

a. Upon an "agreed case" it is unnecessary for the court to make a separate finding of
law and facts. City of Oiuensboro v. Weir, &*c, 95 Ky., 158, 166; as to the trial of pro-
visional remedies, see 19 Ky. L. Rep., 819-20.

b. Where a case is tried by the court without the intervention of a jury, the request
for a separation of the findings of law and fact may be made after judgment within the
time limited for moving for a new trial. Albin Co. v. Ellinger, 19 Ky. L. Rep., 1886, 1892.
If a separation of law and facts be given, the appellate court will determine only whether
the facts found support the judgment; if a bill of exceptions be filed, it will determine
whether there is any evidence to support the judgment; while if a motion for a new trial
and a bill of exceptions are filed, all questions of law and fact are brought up for review. Id.

c. There must be exceptions to the court's conclusions of law in order that they may be
reviewed on appeal. 91 Ky., 406; Beeler v. Sandige, 49 S. W. Rep., 533.

See Form IV, ante, page 710, and notes thereto.
\ 334. When bill of exceptions to be filed.

a. The act of 1886 applies to special as well as regular judges ; and a special judge hav-
ing extended the time for filing a bill to the next term, and not being then present, a bill
which was then offered and which was signed by the special judge at the next term there-
after was held to be valid. McFarland v. Burton, 89 Ky., 294.

b. A bill of exceptions can not be made up and signed in vacation. Adkins v. Common-
wealth, 19 Ky. L. Rep., 1300, 1305.

c. At the term of the trial an order was entered filing a bill of exceptions; at the next
term an order was entered reciiing that in point of fact no bill had been filed at the previous
term and then filing a bill ; though such had been the practice of that circuit it was held
that there was no bill in the record. N. Al. <Sr* M. V. Co. v. Stavig, 98 Ky., 533.

d. See Johnson v. Stivers, 95 Ky.,\yi.

I 335, subs. 1. Evidence in bill of exceptions.

A stenographer's transcript reciting that it contains all the evidence, which is signed
by the judge as a correct transcript of what transpired on the trial, may be treated as a bill
of exceptions. McGeever v. Kennedy, 19 Ky. L. Rep., 845.

f 337, aubs. 2. Time of preparing exceptions.

See Louisville Southern R. R. Co. ▼. fswis, 19 Ky. L. Rep., 570.

Digitized by



i 337* su bs. 3 and 5. Certifying bill of exceptions by bystanders.

This may be done if the judge refuse to sign a bill of exceptions. Commonwealth v.
Hourigan, 89 Ky., 305. But not as to the court's rulings on questions of law. Patterson t.
Com., 99 Ky., 621.

I 337* s ubs. 5. Where a special judge presided at the trial and the regular judge signed
the bill, it was stricken from the record. Lou. Sou. R. R. Co. v. Lewis, 19 Ky, L. Rep, 9 570.

§338. Exception must relate to substantial rights.

Proof of admissions of an agent made after his agency ceased having been allowed, it
was held that an exception thereto must be disregarded, because "the matter to which
they related was proved by other competent evidence. 11 90 Ky., 44.

} 340. Grounds for new trial.

Subs. I. Irregularity in proceedings of t fie court.

See Randolph, &*c, v. Lampkin, 6v., 90 Ky., 558, in which a judgment was reversed
because of the judge's admonitions to the jury concerning their duty to agree on a verdict.

Where the court first ruled that defendant had the burden and required it first to pro-
duce its evidence, and then after the testimony was in changed its ruling and gave the
plaintiffs the closing argument to the jury, it was held that this constituted such •« irregu-
larity in the proceedings of the court" as entitled the defendant to a new trial. O'Connor
6* McCulloch v. Henderson Bridge Co., 95 Ky,, 633-34.

Subs. 3. Accident or surprise.

Plaintiff's action having been dismissed for want of prosecution, his affidavit that he
had misunderstood his attorneys as to when the term of court would begin did not entitle
him to a new trial. 92 Ky., 583.

Subs. 4. Excessive damages.

a. See L. <Sr» N. R. R. Co. v. Long, 94 Ky., 410, and Same v. Foley, Id., 230, in the first
of which a verdict for $26,000, and in the last of which a verdict for $5,000, was held to
be excessive.

b. See Z. cV tV. R. R. Co. v. EarPs adm'x, 94 Ky., 368, the decision in which tccords
with that in Brown v. Morris, cited in note, ante, page 273.

Subs. 7. New Evidence.

See Skinner v. Walker, 98 Ky., 729, 736, as to the meaning of "reasonable diligence.

\ 342 Time of applying for new trial.

a. Motion must be made within three days after the verdict, though a motion for judg-
ment, notwithstanding the verdict, may be pending. 90 Ky., 147.

b. Though the court may, during the term, set aside an order refusing a new trial and
grant one: to permit counsel, after the motion has been overruled, to file other grounds is
in violation of the spirit and meaning of the Code. Ky. C. R. Co. v. Smith, 93 Ky., 449.

c. In Riglesbergerv. Bailey, 19 Ky. L. Rep., 1660, it v/as held (expressly overruling Harris
v. Roy, 15 B. M., 628) that the requirement to move for a new trial within three days
after verdict does not apply to default judgments; but the common law rule prevails and
a court has control over its default judgments during the term at which they are rendered.

d. A motion for new trial being overruled, time until the next term was given to file
a bill of exceptions; at the same term when the motion was overruled there was another
motion made to reconsider the order overruling the motion for a new trial, which motion
to reconsider was not passed on until the next term after the day given for filing the bill.
The court then overruled the motion to reconsider and gave further time for the bill. It
was held that the order overruling the motion for a new trial was final and the court had
no power to reserve control over it after the term, and the bill was stricken from the
record. Turner v •. Johnson, 18 Ky. L. Rep., 202, 204.

% 343. Written grounds for new trial.

A court can not, by an order, allow a motion for a new trial to be made orally,
Beeler v. Sandidge, 49 S. W. Rep., 533.

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{344. Grounds discovered after term.

If grounds for a new trial are discovered after the term at which the trial was had, the
moving party may file his petition for a new trial in the old suit or with the clerk, and it is
error for the court to overrule the petition without requiring the adverse party to plead
thereto. Hocket v. Rosenham, 47 S. W. Rep., 450.

$ 371. Dismissal of action by plaintiff.

The plaintiff has an absolute right to dismiss his action [unless others are interested],
which can not be affected by a rule of court requiring notice. N, M. Life Ins. Co. v. Bar-
Awr, 95 Ky., 9.

§ 371, subs. I. After a motion for a peremptory instruction for the defendant has been
sustained, the plaintiff is entitled to dismiss his action without prejudice. Vertrees v. N.
N. <5r» M. V. Co., 95 Ky., 314, 317.

\ 372. Trial of set-off or counter-claim after dismissal of action.

a. Defendant has no right to file a counter-claim after plaintiff has moved to dismiss his
action. 95 Ky., 9.

b. Defendant is entitled to a trial of his counter-claim or set-off though the plaintiff
dismiss the action after the case is partly heard. Brashears v. Letcher Co. Of., 19 Ky. L.
Rep., 478.

\ 373. Judgment against part of defendants.

See Baumeister v. Markham, 19 Ky. L. Rep., 310.

\ 377. Setting off judgments.

A defendant may set-off against the plaintiff's judgment, a judgment against the plain-
tiff which has been assigned to the defendant; and on a motion so to set-off the judgment,
it is error to consider any pleading in either of the original's actions where the judgments
were rendered. Bush v. Monroe \ 20 Ky. Z. Rep., 547.

\ 379. Assessment of damages.

See Babcock v. Gaines, 19 Ky. L. Rep., 102.

Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 107 of 142)