October 10, 2012

Gray v. Alderson's Admr, Laurel, 1909





123 S.W. 317; 1909 Ky. LEXIS 515

December 17, 1909, Decided

Appeal from Circuit Court, Laurel County.
Action by C. L. Alderson against J. A. Mullins and another; J. T. Gray, impleaded. The action was revived in the name of Alderson's administrator. From the judgment for plaintiff, defendant Gray appeals.


COUNSEL: James M. Hays, J. M. Gilbert, and G. G. Brock, for appellant.

J. W. Alcorn and K. S. Alcorn, for appellee.




 [*317]  LASSING, J. C. L. Alderson filed a suit in equity against J. A. Mullins and Alfred Owens in the Laurel circuit court, in which he sought to recover of them $400, with interest from January 9, 1897, evidenced by two notes, of $200 each, bearing that date, and to subject in satisfaction thereof, certain real estate described in the petition. The defendants were duly summoned, and, failing to answer, judgment by default was rendered against them, and the property described in the pleading was ordered sold in satisfaction of this judgment. In due course of time this order of court was executed, and on December 11, 1905, L. B. McHargue became the purchaser thereof. Thereafter, to wit, on January 12, 1906, plaintiff filed an amended petition, in which he set out that one J. T. Gray was asserting some claim against the  [**2] land, and he asked that he be made a defendant and required to set up his claim, and that the title of the purchaser, McHargue, be quieted, or at least be declared superior to that of the defendant Gray. The defendant Gray answered, and for defense, in addition to pleading payment of the notes, denied plaintiff's title thereto, and by way of further defense set up the fact that he had purchased from the defendants Mullins and Owens the title to the land described in the petition, and that there was a defect in the plaintiff's title to 90 acres of this property, and that by reason of such defect he had been damaged in the sum of $135, for which he sought to hold plaintiff liable on his warranty to Mullins and Owens. He further pleaded, by way of set-off or counter-claim, that the plaintiff had, without right, cut and removed timber from the land of the value of $550; and he sought to have these several sums set off against any judgment to which plaintiff might be found entitled on account of the debt represented by the notes set up and described in the petition. The affirmative matter in the answer was traversed in the reply, and an amended petition was filed on June 1, 1906, in which  [**3] it was alleged that, through mistake of the draughtsman, the suit had been brought in the name of the plaintiff, when it should have been brought in his name as administrator of his deceased wife, Jane Alderson, to whom the notes in fact belonged, and he prayed that as administrator he be given judgment for the amount of the notes sued on. Upon exceptions filed to the report of the sale, the sale was quashed, and the default judgment set aside and held for naught. No further steps were taken in the case  [*318]  until in June, 1908, when a judgment was entered in favor of plaintiff as administrator, and the land was ordered sold in satisfaction thereof. The master commissioner of the Laurel circuit court executed this order, and on the 13th day of July, 1908, McHargue again became the purchaser thereof, and, upon exceptions filed to the report of the sale to him, the case was heard, the exceptions overruled, and the sale confirmed. From this order and judgment, the defendant Gray prosecutes this appeal.

The chief ground relied upon for reversal is that a fraud was practiced upon the defendant Gray or his counsel, and that, while he was led to believe that the case was about to be settled and  [**4] adjusted, and thus lulled into quiet and prevented from taking his proof and preparing his case for trial, the plaintiff had the case submitted and judgment rendered, to his prejudice. The record shows that the case was submitted at the October term, 1907, and judgment was not rendered until the June term, 1908, which was the second term after the order submitting the case was entered. Without going at length into defendant's contention as to what was the understanding between apposing counsel prior to the date of the submission of this case at the October term, 1907, the fact that an order was asked submitting the case was ample notice to the defendant and his counsel that a proposition to settle the case was not being considered, and between the entering of this order at the October term and the date of the rendition of the judgment at the following June term defendant had ample time to prepare his case for trial. He is in no position to complain because he failed to do so. The burden being upon him, there was nothing left for the trial judge to do but render judgment in favor of plaintiff, as his contentions were wholly unsupported by proof.

The petition was defective, but defendant  [**5] did not seek to avail himself of this fact by demurring thereto, and instead set up a state of facts in his answer which cured it; for, although the petition had failed to allege a conveyance on the part of plaintiff to his vendees, or to state the title under which he made said conveyance, the defendant, in the third paragraph of his answer, pleaded, in substance, that the plaintiff conveyed to his vendees, Mullins and Owens, by general warranty, for he seeks to recover $135 damages by reason of the failure of title to 90 acres of this land.

Nor is there any merit in the contention of appellant that the court erred in permitting the amended petition to be filed, wherein plaintiff discloses the true ownership of the notes. It has been so frequently held that a trial judge is authorized, at any time before trial, and even during the progress thereof, to permit amendments to be filed, in furtherance of justice, that a citation of authorities upon this point is deemed unnecessary. Certainly that rule has not been violated in this case. The defendant himself pleaded that plaintiff, C. L. Alderson, was not the owner of the notes sued on, and in response to that plea the plaintiff sets up  [**6] the fact that by mistake of the draughtsman the suit had been prepared and thus far prosecuted in his own name, rather than in his name as administrator of his deceased wife. This pleading in no wise changed the cause of action. It was still an effort to collect the same notes set up and described in the original petition, and to subject the same land therein described in satisfaction of this debt. The trial judge not only did right to permit this amendment to be filed, but it would have been error for him to have refused to do so.

Nor was it necessary that a summons should issue upon this amended pleading, since it in no wise changed the cause of action, or sought to set up or assert any additional claim, or change the nature of the claim asserted.

There being no error in the record prejudicial to the substantial rights of appellant, the judgment is affirmed.

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