October 1, 2012

Bledsoe v. Martin, Pulaski, 1831

Bledsoe vs. Martin.

COURT OF APPEALS OF KENTUCKY

28 Ky. 520; 1831 Ky. LEXIS 66; 5 J.J. Marsh. 520

April 13, 1831, Decided

PRIOR HISTORY:  [**1]  Error to the Pulaski Circuit; JOHN L. BRIDGES, Judge.

DISPOSITION: Reversed and remanded, with instructions.

COUNSEL: Caperton, for plaintiff.

JUDGES: Chief Justice ROBERTSON.

OPINION BY: ROBERTSON

OPINION

 [*520]  Chief Justice ROBERTSON, delivered the opinion of the court.

BLEDSOE enjoined a judgment obtained against him by Martin, alleged to have been for $ 1000.

The bill relied mainly on grounds which were not sustained. But among other allegations, it charges, rather incidentally, the payment by Bledsoe to Martin, of $ 400 since the date of the judgment.

The answer denies those allegations in the bill, which seemed to have been considered by Bledsoe most material; but does not directly, or specifically deny the alleged payment of $ 400; but barely requires proof of all allegations which had not been admitted.

The circuit court dissolved the injunction with damages, amounting to $100, and dismissed the bill with costs.

Neither the bill nor answer, suggests whether or not credit had been given for $400, on the execution, or in the judgment. And there is no fact or exhibit in the record from which we can ascertain whether such credit had been given or withheld.

As the answer does not expressly [**2]  deny it, the alleged payment must be considered as confessed. And therefore, as it does not appear that credit had, in any way, been given for the $400, it seems that the circuit court erred in dissolving the injunction; it ought to have been perpetuated for $400, and dissolved with damages for the residue. And if in fact, Bledsoe had been credited on the execution, Martin is not without remedy, for avoiding such a credit and obtaining restitution.

Decree reversed, and cause remanded, with instructions to enter a decree conformable to this opinion.

No comments:

Related Posts Plugin for WordPress, Blogger...