October 1, 2012

Faulkner v. Keeney, Pulaski, 1899

FAULKNER v. KEENEY.

COURT OF APPEALS OF KENTUCKY

52 S.W. 819; 1899 Ky. LEXIS 393; 21 Ky. L. Rptr. 590

September 23, 1899, Decided

PRIOR HISTORY:  [**1] Appeal from circuit court, Pulaski county.

DISPOSITION: Affirmed.

COUNSEL: Curd & Smith, for appellant. O. H. Waddle, for appellee.

JUDGES: WHITE, J.

OPINION BY: WHITE

OPINION

 [*819]  WHITE, J. - This action was instituted by appellee, Keeney, on a note executed by appellant to W. B. Gover, and assigned by Gover to Keeney. The appellant filed an answer admitting the execution of the note, and pleading in the first paragraph of his answer that he was entitled to certain credits ($240 and $43) by reason of the payment of these sums at dates mentioned. In other paragraphs are pleaded other transactions as payments made by appellant for Gover, which, it is alleged, were, by agreement, to be placed as credits on the note sued on. All these credits and payments were alleged to have occurred before the note in question was assigned to Keeney. In this condition there were two jury trials; the one being for appellee, and the other practically for appellant. These judgments were set aside, and a new trial again awarded. On the calling of the case for the third trial the appellant offered to file an amended answer, which the court refused to  [**2] permit. This amended answer pleaded the items in the second, third, and fourth paragraphs of the original answer as a set-off against the note, but adopted the original answer as to the first paragraph, pleading the items of $240 and $40 as payments. It is seriously contended that this action of the court is error requiring a reversal. After the jury were impaneled the appellant offered a second amendment to his answer, pleading that Keeney was not the real party in interest, but that he held the note as collateral security for a debt due by Gover, and Keeney as his surety, to Leece, and that, as Keeney had paid nothing on the note as surety for Gover, he had no real beneficial interest in the note sued on, the real party being Gover. The court refused this amendment, but, by order, required appellee to amend his petition and make Gover a party plaintiff.

Appellant asked, and the court refused to give to the jury, instructions 1 and 2. Instruction No. 1 was peremptory for defendant. No. 2 reads: "The court instructs the jury that if they believe from the evidence that the note sued on was assigned to Thomas Keeney, the plaintiff, to indemnify him against loss as surety on note of W.  [**3] B. Gover to R. B. Leece, and that said Keeney has not paid any part of said note to Leece, they will find for defendant." The action of the court in refusing to permit the amended answer pleading the items as set-off, instead of payments, and in refusing to give instructions, is made ground for new trial, and is urged as error in this court. We are of opinion that the court did not abuse its discretion in refusing the amendment. There had been two trials on the merits, and there is no reason why this plea of set-off should not have been made before the third trial. We are also of opinion that there was no error in refusing the two instructions asked for by appellant. After Gover was made a party, either he or Keeney was entitled to judgment on the note, if anything remained unpaid; and, as between Gover and Keeney, the pleadings showed that Keeney had an equitable interest in the note.

Complaint is also made of the action of the court in the admission of testimony. In the production of the evidence we find no ruling of the court adverse to appellant which would authorize a reversal. The instructions given fairly present the law of the case as made by the pleadings, and the evidence  [**4] fully sustains, the verdict. Finding no error prejudicial to the substantial rights of the appellant, the judgment is affirmed, with damages.

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