Bohannank v. Mills

Court of Appeals of Kentucky

Bohannank v. Mills

2 Ky. Op. 597, 1868 Ky. LEXIS 519

DecidedSeptember 19, 1868

StatusPublished

This text of 2 Ky. Op. 597 (Bohannank v. Mills) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bohannank v. Mills, 2 Ky. Op. 597, 1868 Ky. LEXIS 519 (Ky. Ct. App. 1868).

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Opinion

Opinion op the Oourt by

Judge Williams :

The allegations of the answer setting up an off-set and asking [598]*598judgment over are for “services rendered, cash advanced, loaned, &c." In the account filed are the following items, which constituted the greater part of the claim for $314 set up as the off-set:

Marshall & Clarice, Harlan & Newman, for appellant. Mix, for appellee.

Board of negro boy James from April 1, 1865, to

September 25, 1865 ...........................$118

Board for negro girl Mat . :................... 30

Making an aggregate sum of..................$208

Whatever may be said of the imperfection of the reply, it was not more so than the answer and set-off, for the allegation of “services and cash advanced and loaned,” could not authorize a recovery for board; the “&c.,” as Lord Ooke long since said, “means anything or nothing,” and therefore cannot be regarded as an allegation as to any thing.

Strike these items for $208 from the set-off, and there remains $106 — when the plaintiff acknowledges an indebtedness of $120 to the defendant, showing a right of recovery in him of $14. But as a jury on a previous trial found for plaintiff $131.60-100, which the court set aside because it supposed the set-off not replied to, overlooking the imperfection of the answer, and as on the calling of the cause the plaintiffs counsel had their names stricken from it, the court should have continued the cause with a rule against the plaintiff to prosecute his suit; this would be but fair to him if his counsel for justifiable cause, unknown to him, should abandon the case, and but fair to the court to ascertain whether practitioners in his court for an unjustifiable cause or censurable practice has adopted such a course.

A delay for such rule can rarely produce injury, when to give judgment immediately upon counsel’s withdrawal from a case is fraught with great, danger to the client.

Wherefore, the judgment is reversed, with directions for a new trial and with leave to either party to amend and perfect their pleadings.

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Opinion op the Oourt by

Judge Williams :

The allegations of the answer setting up an off-set and asking [598]*598judgment over are for “services rendered, cash advanced, loaned, &c." In the account filed are the following items, which constituted the greater part of the claim for $314 set up as the off-set:

Marshall & Clarice, Harlan & Newman, for appellant. Mix, for appellee.

Board of negro boy James from April 1, 1865, to

September 25, 1865 ...........................$118

Board for negro girl Mat . :................... 30

Making an aggregate sum of..................$208

Whatever may be said of the imperfection of the reply, it was not more so than the answer and set-off, for the allegation of “services and cash advanced and loaned,” could not authorize a recovery for board; the “&c.,” as Lord Ooke long since said, “means anything or nothing,” and therefore cannot be regarded as an allegation as to any thing.

Strike these items for $208 from the set-off, and there remains $106 — when the plaintiff acknowledges an indebtedness of $120 to the defendant, showing a right of recovery in him of $14. But as a jury on a previous trial found for plaintiff $131.60-100, which the court set aside because it supposed the set-off not replied to, overlooking the imperfection of the answer, and as on the calling of the cause the plaintiffs counsel had their names stricken from it, the court should have continued the cause with a rule against the plaintiff to prosecute his suit; this would be but fair to him if his counsel for justifiable cause, unknown to him, should abandon the case, and but fair to the court to ascertain whether practitioners in his court for an unjustifiable cause or censurable practice has adopted such a course.

A delay for such rule can rarely produce injury, when to give judgment immediately upon counsel’s withdrawal from a case is fraught with great, danger to the client.

Wherefore, the judgment is reversed, with directions for a new trial and with leave to either party to amend and perfect their pleadings.

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2 Ky. Op. 597, 1868 Ky. LEXIS 519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bohannank-v-mills-kyctapp-1868.