Babb v. First National Bank

17 S.W.2d 404, 229 Ky. 498, 1929 Ky. LEXIS 779

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: May 14, 1929
• Status: Published

Opinion

Opinion op the Court by

Judge Clay

Affirming.

In this proceeding for a new trial under sections 518 to 521, Civil Code of Practice by Myrtle Smith Babb, R. L. Babb, and Copeland Smith, against the First National Bank of Mayfield, Y. E. Allen, and others, a demurrer was sustained to the petition, and the petition was dismissed. The applicants appeal.

The petition contains about 40 pages, and it will serve no good purpose to set it out in full, or to state the substance of the allegations. . It has long been the settled rule that, in order to state a cause of action for a new trial, the petition should set out the proceedings of the former suit, and generally the record of that suit should be made a part of the new record, so that the court may determine upon the whole case whether a new trial should be granted. Overstreet v. Brown, 62 S. W. 885, 23 Ky. Law Rep. 317; Louisville Tobacco Warehouse, etc., v. Wood, etc., 82 S. W. 456, 26 Ky. Law Rep. 769; Rice’s Ex’rs v. Wyatt, 76 S. W. 1087, 25 Ky. Law Rep. 1060; Reinicke v. Morse, 10 S. W. 468, 10 Ky. Law Rep. 767; Weir v. Weir, 45 S. W. 66, 19 Ky. Law Rep. 2005; Johnson v. Carter, 63 S. W. 485, 23 Ky. Law Rep. 591; Flint v. Illinois Central R. Co., 97 S. W. 736, 29 Ky. Law Rep. 1149. In this case the record of the former proceeding was not made a part of this record, nor did the petition set forth the proceedings in that suit in such a way as to enable the court to know exactly what was done, or to determine whether the applicants had a valid defense. In the circumstances the trial court did not err in sustaining the demurrer to the petition.

Judgment affirmed.