October 1, 2012

M. Cummins v. John Fitzgerald, Pulaski, 1878

M. Cummins v. John Fitzgerald.

COURT OF APPEALS OF KENTUCKY

10 Ky. Op. 47; 1878 Ky. LEXIS 128

September 26, 1878, Decided

PRIOR HISTORY:   [*1]  APPEAL FROM PULASKI CIRCUIT COURT.

DISPOSITION: Judgment reversed and cause remanded.

COUNSEL: Morrow, for appellant.

JUDGES: Judge Hines.

OPINION BY: Hines 

OPINION

Opinion by Judge Hines:

Appellant was sued in the quarterly court on an account for something near $ 100, and judgment rendered against him by default. An appeal was taken to the circuit court and filed October 13, 1876. At the March term of the circuit court, being the first term after the appeal, appellant tendered his answer and appellee objected to its being filed, and assigned as grounds that the answer should have been filed and issue found in the quarterly court. The circuit court sustained the objection, and appellant failing to plead further judgment was rendered against him. The answer set forth a good defense to the action, and the court should have permitted it to be filed. Sec. 720 of the Civil Code provides that such appeals shall be tried anew as if no judgment had been rendered.

Judgment reversed and cause remanded with directions to permit the answer to be filed, and for further proceedings consistent with this opinion.

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