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mance of the judgment on the grounds that, though it was rendered pre-
ror was a clerical misprision (§578), and that no motion to correct it had

acted on by the court below, as was required by $$ 577 and 580. These
ibstantially the same as those of the present Code.

ig an action, on defendant's motion, at the same term at which he answers,
>le error, if, on the facts alleged in the petition, the plaintiff is not entitled

than was adjudged to him. 13 Busk, 688.

hange of venue, if the papers are filed ten days before the term of the
the case is removed, it stands for trial at that term if it would have stood
lext term of the court from which it was moved. Dale v. Hays, 14 B. A/.,
hap. 12, art. 1, §7.

time of trial in actions against defendants constructively summoned, gen-
ind note (6) ; and, in the Louisville Chancery Court, see § 809 and note.

6]. When plaintiff' may dismiss as to some and try as to ot/ters.
ons in an equitable action have been served in due time on
he defendants, the plaintiff may dismiss his action as to those
ed, and proceed to trial as to the others, if he could have
is action against them without joining those not summoned.
19



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388 TRIAL AND JUDGMENT. [TITU



CHAPTER III.

JUDGMENT.

Art. I. Judgment in general.

f ' 2. Judgment upon Jailure to plead.

if 3. Judgment by confession.

" 4. Manner of giving and entering judgment.

*' 5. Conveyance by commissioners under a judgment.

ARTICLE I.

JUDGMENT IN GENERAL.

2 368. Judgment defined.

\ 369. may be for or against one or more.

$ 370. against some, leaving action to proceed against others.

J 371. Dismissal of action without prejudice.

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

? 373* Judgment against part of defendants summoned.

2 374. Mortgage enforceable without giving time.

J 375. foreclosure of, forbidden.

\ 376. judgment on, may be for sale and debt.

2 377- Judgments for money may be set-offs.

2 378. injunction against, pendente lite.

§ 3^8 [397]. Judgment defined. — A judgment is a final determinat
of a right of a party in an action or proceeding.

1. As to what constitutes a " final determination" see note I to 2 734.

2. A decree is a judgment within the meaning of the Code. 3 Met., 548.

3. A memorandum at the foot of a judgment is part thereof. 4 Mon., 547-48.

4. " It is clearly no part of the judgment of the court to state whether the process
been executed or not; " and a statement in the judgment that process has been served <
not prove that fact. 1 Bush, 196; 6 id., 394.

§ 369 [398]. Judgment may be for ot against one or more. — Judgm
may be given for or against one or more of several parties.

§ 37° [399]- Judgment against some, leaving action to proceed ago*
others. — In an action against several defendants, the court may, in
discretion, render judgment against one or more of them, leaving
action to proceed against the others, if a several judgment be prop

Judgments in actions against several defendants {notes to $369 and 370).
I. In actions on contracts.

(1) See $26 and 27 and notes thereto, and J 363 and note {a).

(2) In an action against co-contractors, the plaintiff may abate as to one and take ji
ment against the others (1 Duv., 30) ; or the action may be continued as to defendants
have not been summoned. J 363.

(3) A judgment against one defendant, though replevied, does not bar proceed
against another. 3 Met., 500; 13 Bush, 421-22.



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JUDGMENT IN GENERAL. 289

lent may properly be rendered against the surety before the principal is
\tton v. Shanklin, 14 B. M., 17.
for torts,

rules of the common law and the provisions of the act of February 14,
73), concerning actions and judgments against joint trespassers, see note
5.

nlyof the defendants be summoned, \ 363 forbids rendition of judgment
iless the action be discontinued on the first day of the term as to those not
fger v. Downs, 2 Met., 160, and Buckles v. Lambert, 4 Id., 330, overruling
n, 17 B. M., 188); but, if all be summoned, #373 authorizes judgment
liem, against whom the plaintiff would have been entitled to judgment if
i alone, although the case be not disposed of as to others ; and this applies
t joint trespassers. Buckles v. Lambert, supra,
ties.

lea of infancy, or other individual defence, by one of several defendants,
e rendered against the others, without disposing of that issue; but a judg-
can not be rendered against one defendant, pending an issue presented by
ctinguishes the plaintiff's demand ; as, a plea of payment. Rouse v. How-
As to the right of a defendant to withdraw an answer presenting such
lush, 674.

ion against several defendants, one of them being a nominal and unnec-
ween whom and the plaintiff there is no litigation, a judgment against "the
iout discrimination, although erroneous, is a clerical misprision and jiot
le Court of Appeals [no motion to correct it having been made in the
Tin., Ham. 6* Dayton Railroad Co. v. Spratt, 2 Duv., 4.
f the defendants have been, and others have not been, summoned, a judg-
e "defendants" applies only to those summoned. Clark v. Finnell, 16
see Kountz v. Brown, &V., Id., 585.

on against two defendants, on their joint note, it was held that a judg-
m. against "the defendant" was a judgment against both (4 Litt., 389);
ding against two defendants who were summoned, a judgment against
' was held to be a judgment against both. 6 Dana, 315.
V heirs v. Banks, 6 Mon., 225, a decree by consent was held to be a decree
defendants who had been summoned or appeared.

>]. Dismissal of action without prejudice . — An action, or any
on, may be dismissed without prejudice (a) to a future

plaintiff, before the final submission of the case to the jury,
rt, if the trial be by the court,
court —

>laintiff fail to appear at the trial,
want of necessary parties (b).

application of a defendant, if there be others whom the
to prosecute with diligence.

obedience by the plaintiff of an order concerning the pro-
le action. In all other cases upon the trial of the action,
nust be upon the merits.

►de does not authorize a plea in abatement; but, if it appear from the



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29O TRIAL AND JUDGMENT. [TITLE



petition or answer (§£92, 118) that the plaintiff has not legal capacity to sue, the petit
should be dismissed without prejudice. 4 Met., 402; 2 Duv., 287.

2. In an action against an administrator and sureties of a decedent, if the plaintiff
to make the affidavit and demand required by law, the petition should be dismissed wi
out prejudice as to the administrator, but not as to the sureties. 1 Met., 26.

3. The absolute dismission of a petition for a technical defect, or because the debt 1
not due, or because the court had no jurisdiction, or because of the temporary disabi
of the plaintiff to sue, or because the petition fails to state a cause of action, does not
a future action. Hickey v. Young, I J. J. M., 1; Jarman v. Daniel, Id., 198; Birch
Funk, 2 Met., 544, and cases cited.

4. The dismission of an action "without prejudice," even after an issue was forn
and proof heard, does not bar another action, but leaves the parties as if no action 1
been instituted. Magillv. Mercantile Trust Co., 81 Ky., 129.

5. An order that an action be "dismissed agreed" bars a subsequent action; but
order " that this cause be dismissed at defendant's cost, and leave is given the plaintiff
withdraw the note sued on by leaving a copy in the papers/' is, in effect, a dismiss
without prejudice. HUdreth v. Shipp, 78 Ky., 64.

6. In general, the plaintiff has no right to dismiss an action in which another per:
has an interest ; as, an equitable right to the property sued for (3 Litt,, 8) ; or a claim
property conveyed in violation of the act of 1856 (5 Bush, 539), or which has been tal
from the defendant under title 8, chapter 2, of the Code. 8 Bush, 164.

(b) 1. See note III, ante, page 22.

2. An action should not be dismissed because the plaintiff has failed to have a guard
ad litem appointed for an infant-defendant : the court should make the appointment, thoi
the plaintiff may have failed to move therefor and though the case may have been submit
for hearing. 9 Bush, 498 to 503.

§ 372 [401]. Trial of set-off or counter-claim after dismissal of actic
A defendant is entitled to a trial of a set-off or counter-claim, althou
the plaintiff dismiss his action or fail to appear.

§ 373 [4° 2 ]- Judgment against part of defendants summoned. — Thou
several defendants are summoned, judgment may be rendered agaii
any of them, if the plaintiff would have been entitled to judgmei
against them in an action against them alone.

1. See note (c) to J 363, and notes to \ 370.

2. Section 402 of the Code of 1854 contained the word "severally" after the w<
"them" in line 2; and yet it was held that said section authorized "separate or jc
judgments against one or more of the defendants, as the case may require." 4 Met., 3

§ 374 [403]. Mortgage enforceable ivitJwut giving time. — In an acti
to enforce a mortgage or other lien, a sale of the property may
ordered without giving time to pay money or do other act.

Sales under mortgages and liens.
I. It was held under the Code of 1854 —

(1) That, in an action by the holder of several lien-notes, some of which were d
and some not due, the plaintiff's allegation that the sale of an entire tract of land ^
necessary, to prevent loss to him, did not authorize a judgment for a sale for money 1
due. Burton v. Mc Kinney, 6 Bush, 428.

(2) That, the plaintiff holding three lien-notes, it was erroneous to order a sale of



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JUDGMENT IN GENERAL. 29 1



ad as might be necessary to pay two of said notes, which were due, subject
's lien for the third note, which was not due ; and that the court should
sale of so much of the land as might be necessary to pay the notes due,
idue of it subject to the lien for the note that was not due. Emison v.
, 24.
sn-notes for the purchase-money of land, having been assigned to four per-

in an action by one of the assignees against the others, and against the
»rce the lien, the assignees who were made defendants were entitled to
ir answers, without cross-petitions, their demands having been stated both

and in their answers. Jenkins v. Smithy 4 Met., 380: for a dictum to the
win 6r* Elliott v. WilUams &* Ray, 8 Bush, 346, and comments thereon, note

ei39-

>ove mentioned matters, see $§ 692, 694, and 695 of Code
ntiff having obtained an attachment of land, an order for the sale of it,
endows lien for purchase money — without making the vendor a defendant,
the sum due to him — was held to be erroneous. Mills v. Brown, 2 Met,,

04]. Foreclosure forbidden. — Foreclosure of a mortgage is



f 1854 declared that, " in the foreclosure of a mortgage, a sale of the mort-
shall, in all cases, be ordered."

ure of a mortgage is an order which bars the mortgagor's right to redeem,
ent with an order for the sale of the property to pay the mortgage-debt,
sake ok consistency, this Code, whilst it authorizes a sale of the property,
of 1854, forbids a foreclosure.

6]. Judgment may be for sale and debt. — In an action to en-
gage or lien, judgment may be rendered for the sale of the
1 for the recovery of the debt against the defendant person-

:'S RIGHTS OF ACTION, AC.

I to the common law, a mortgagee had the right, after the debt became
lession of the property peaceably, if he could, or to recover the possession in
w (Dana, 227-28; 4 B. M., 365; II Id., 22); but, notwithstanding the
wkhever v. Hurst, I Met, 665, and Brown v. Phillips, 3 Bush, 656, it seems
tied that those rights have been abrogated by the Code ; a mortgage being,
lien, a mere security for the debt, and the mortgagee's only remedy as to
nd profits, in the absence of an express contract on the subject, being the
a receiver under J 299 of the Code. 12 Bush, 705; 13 4£, 45; 14 Id.,
)&; 83 Id., 395. In the case in 14 Bush, A having leased land to B in
raged the land to C in 1874, and assigned the lease to D in 1875, lt was
n by the mortgagee, that the assignee of the lease was entitled to the rents,
aving failed to obtain the appointment of a receiver before the assignment

nee of a mortgage-debt, having obtained an order of sale and a personal
st the mortgagor, must have execution issued within reasonable time, in
ie assignor liable. 1 Met., 294: in order to hold the assignor liable, the
chaust both remedies with due diligence. 81 Ky., 636.
nor of a note executed to his assignee a mortgage conditioned to be void,



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lg2 TRIAL AND JUDGMENT. [TITLE 13

F the assignor and payors of the note should pay the same : held, that the assignee lo
ecourse upon the mortgage by failing to prosecute the payors with diligence. Carlyle '
Chambers, 4 Bush, 275.

§ 377 [407]. Setting off judgments. — Judgments for the recovery ol
noney may be set off against each other, with due regard to the lega
Lnd equitable rights of all persons interested therein. The set-off ma;
>e ordered upon motion, after reasonable notice to the adverse party, i
>oth judgments are in the same court ; or, in an equitable action, in th
:ourt which rendered the judgment sought to be annulled bytheset-of

1. Under the old practice it was held —

(1) That a common law court may, on motion, set off judgments which it had re
lered (4 J. J. M., 75) ; but that the motion is addressed to the equitable discretion of tl
ourt (5 B. M., 78), and the power " should not be exercised under circumstances repu
lant to the principles of equity,'* and, consequently, a set-off should not be ordered to tl
>rejudice of a bona fide assignee. 3 Bibb, 234.

(2) That a court of equity may set off judgments rendered in different courts, if tl
>arty against whom the relief was sought be insolvent (6 Dana, 305) or a non-reside
&9 363) ; or, if the demands be connected, or there had been an agreement to make
et-off. 3 Bibb, 234; 3 /./. M. t 304.

(3) That, in an action against the assignor and assignee of a judgment, the chancell
:ould decree a set-off, though both judgments had been rendered by the same cour
>ecause, 1, courts of equity exercised such jurisdiction "before courts of mere law,
inalogy to the statute of assignments of George II, assumed jurisdiction to set off o
judgment against another;" and, 2, because the assignee was a necessary party to ai
>roceeding for obtaining the set-off, "and could not have been appropriately made a pat
n a court of law, for the purpose of litigating antagonist equities " between the parties
he judgments. 6 Dana, 306; and set Jeffreys v. Evans, 6 B. M., 120.

But, in Palmateer v. Meredith, 4 J.J. M., 74, in which there had been no assignmei
t was held that an action in equity, for a set-off, was properly dismissed with costs.

(4) That a judgment against a party in his individual capacity, may, in equity, be 1
)ff against a judgment in his favor, as executor, for money which was in truth due to h
n his own right. 6 Dana, 363.

(5) That, in equity, a judgment against administrators, upon which an execution h
?een returned "no property found," maybe set off against a judgment in favor of co
missioners for money which it was their duty to pay to the administrators. 4 Man., 1.

(6) That, in equity, one member of a firm may set off his own judgment against
nsolvent debtor's judgment against the firm. 6 B. M., 119.

(7) That the assignee of a judgment takes only an equity, which can not prevail o\
in equitable set-offpreviously existing against the assignor. 6 Dana, 305; 6 B. A/., 119-3

Under the Code it has been held —

(!) That the setting off of judgments is not affected by §19, but is regulated by §3
~f the Code. Pfeiffer v. Harris, II Bush, 400.

(2) A sued Bona note, and, pendente lite, assigned the claim to C ; and, after juc
ment, B, without notice of the assignment to C, procured from D the assignment o
judgment against A (who was insolvent) ; and it was held that as each party had only
jquttable right, and as C's was the oldest, B could not set off the judgment assigned
tfm by D. Pfeiffer v. Harris, supra.

(3) A replevin-bond is a judgment within the meaning of \ 377. Smith v. Bohcn,
Bush., 448.

(4) A defendant can not set off a judgment in his favor against the plaintiff, to t



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JUDGMENT UPON FAILURE TO PLEAD. 295

i plaintiff's attorney who has a lien on the judgment against the defendant.
ary v. Shutt, &*c, 9 Bush, 659.

8]. Enjoining judgment pendente lite. — During the pendency
the judgment in which when recovered could be used as a
it a judgment in favor of the defendants or either of them,
prevent loss by insolvency, non-residence, or otherwise,
he collection of the judgment in favor of such defendants,
the provisions of chapter IV of title VIIL

ARTICLE II.

JUDGMENT UPON FAILURE TO- PLEAD.

sment of damages, &c, before rendering.
!>c for part of demand not controverted.

9]. If the taking of an account, or the proof of a fact, or
int of damages, be necessary to enable the court to pro-
nent upon a failure to plead, or after a decision of an issue
rourt may take the account, hear the proof, and assess the
• may cause them to be assessed by a commissioner or a
ifter the day on which the action is set for trial.

i old practice it was held that, in an action of covenant for a certain sum
udge not only might but should assess the damages, without the interven-
Ltit., 211-12); but that a jury was indispensable when the damages were
n an action on a covenant to pay a certain sum of money in horses {Har-
oommon wealth's bank paper. 5 J. J. M., 57. But it seems clear that,
ject to the Constitutional provisions as to the right of trial by jury, the
proof and assess the damages in such cases without a jury.
i right of juries, and of judges to whom the law and facts are submitted,.
►r damages from their personal knowledge, see note 3, ante, page 258.
ig the former and the present practice as to damages in actions on penal
II, ante, page 70.

\ v. Depew, 3 Mar., 183, it was held that, upon an inquiry of damages by
ill in equity had been taken for confessed, the attention of the jury should
kind of damages to be inquired into; and that the decree should point out
e evidence to be used.

ng to Reading v. Ford's heirs, I Bibb, 340, anrf Moore v. Simpson, 5 Utt. ¥
nquiry parol evidence may be introduced unless the order of the chancel-
wise; and when the finding of the jury is not supported by the written
, it should be presumed that parol evidence was introduced, and that pre*
itand unless the contrary appears from a bill of exceptions on a motion for
therwise. And see § 552, subs. 2.

; Code of 1854 it was held that no assessment of value is necessary in an
alue of medical services and medicine (15 B. M., 628) ; nor in an action
nd delivered to the defendant (2 Bush, 197); but the court may give judg-
t for the debt, with interest from the commencement of the action (18
:ause, in legal contemplation, the action is founded upon the defendant's



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294 TRIAL AND JUDGMENT. [TITLE

promise to pay a certain sum of money, since the law implies a promise to pay the va
4 Met., 284; 5 Bush, 429.

But an assessment of value or damage was held to be necessary in an action for the vj
of coal taken by the defendant from the plain tiff (14 B. M., 393) ; in an action for tresj
on the plaintiff's land (18 B. M., 226) ; in an action for the value of goods which a c
mon carrier failed to deliver according to contract (I Met., 558); for the value of <
notes which the defendant failed to assign according to his covenant (3 Met., 1961; for
value of negro clothing which the defendant failed to furnish according to his cont
(4 Met., 282) ; for the value of wagons, &c, converted by defendant to his use (1 B
191); for a reasonable attorney's fee (5 Bush, 1 10); for the value of whisky which
defendant failed to deliver according to his covenant (5 Bush, 426); and for the pric<
stipulated services, part of which the. defendant refused to let the plaintiff perform,
Bush, 507.

On this subject, however, the Code of 1854 has been changed by the present Cod<
two respects: 1, ? 153 of the former declared that " allegations of value, or of amoum
damage, shall not be considered as true by the failure to controvert them ; " whilst $
of the latter declares that allegations concerning value or amount of damage, accOmpai
by an allegation of an express promise, or by a statement of facts showing an imp
promise, to pay such value or damage, need not be proved unless traversed ; and, 2, {
of the former declared that, "if the taking of an account, or the proof of a fact, or
assessment of damages, is necessary to enable the court to pronounce judgment upc
failure to answer, or after a decision of an issue of law, the court may take the acco
hear the proof, and, in actions founded on contract, assess the damages," &c, whilst \
of the latter omits the words "in actions founded on contract." Therefore, under
present Code, though, if a plaintiff whose property the defendant has wrongfully <
verted to his own use, sue for the tort, he must prove the damages, upon a judgmenl
default : yet they may be assessed by the court, which could not have been done under
Code of 1854; and, if, as he may do (see note I, ante, page 80), such plaintiff waive
tort and sue on an implied contract to pay the value of the property, he may take ji
ment by default therefor. And see 80 Ky., 63; 82 Id., 202-3.

6. When proof of value or damage is necessary to authorize a judgment therefor
failure to plead, or after a decision of an issue of law, the record must show that tl
has been an inquest by the court or a jury or a commissioner. 14 B. M. % 395 ; 18
229; 3 Met., 196; I Duv., 281; 2 Id., 281 ; I Bush, 191; 5 Id., 428.

But a recital in the record or judgment, that the cause was heard, authorizes the ii
ence that the necessary proof was heard. 2 Duv., 281 ; 2 Bush, 169.

7. The provision as to proof of value or damage applies as well to courts of equit
to courts of law. 18 B. M., 229.

§ 380 [410]. Judgment for part of claim not controverted. — If onl
part of a claim be controverted, judgment may at any time be rende
for the part not controverted.

1. Taking and collecting judgment for the sum which is not controverted does
affect the plaintiff's right to residue. 13 Bush, 407; 80 Ky., 585.

2. See J 634, 635, and 640.



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JDGMENT BY CONFESSION — MANNER OF GIVING, ETC. 295

ARTICLE III.

JUDGMENT BY CONFESSION.

to be taken.

cause of action to be stated,
tof.

1 1]. Any person may personally appear in a court of compe-
tion and, with the assent of a person having a cause of action
confess judgment therefor ; whereupon, judgment shall be
►rdingly. v

12]. The cause of action shall be briefly stated in the judg-
a writing to be filed as pleadings in an action.
13]. Such judgment shall authorize the same proceedings as
endered in actions, and the confession shall operate as a
rors.

ARTICLE IV.

MANNER OF GIVING AND ENTERING JUDGMENT.

nent, when to conform to verdict.

order of court,
notwithstanding verdict,
on set-off or counter-claim,
in action for personal property,
for damages given by statute,
how to be entered,
showing cause against, by infant.
to be cross-indexed in book,
satisfaction of, to be entered in book.

14]. When judgment to conform to verdict. — After a jury-trial,
ill enter judgment in conformity to the verdict, [unless it be
one or more questions of fact, or] unless the court reserve
consideration.

'ords impliedly repealed by Act May 15, 1886, p. 120.

•t can not refuse to render judgment in accordance with the finding of the

>er notice and motion made after the time to move for a new trial has ex-

4,469.

! sufficiency of a verdict to authorize a judgment, and conforming the judg-

ee note (a) to \ 326.

[ 5]. When judgment to conform to order of court. — After [such
ct, or] such reservation the clerk shall enter such judgment
:he court may direct.

rords impliedly repealed by Act May 15, 1886, p. 120.

16]. Judgment notwithstanding verdict. — Judgment shall be
e party whom the pleadings entitle thereto, though there
sen a verdict against him.



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\g6 TRIAL AND JUDGMENT. [TITL



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 42 of 142)