Breashear v. Breashear

Court of Appeals of Kentucky

Breashear v. Breashear

4 Ky. Op. 675, 1872 Ky. LEXIS 138

DecidedJanuary 24, 1872

StatusPublished

This text of 4 Ky. Op. 675 (Breashear v. Breashear) 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.

Bluebook

Breashear v. Breashear, 4 Ky. Op. 675, 1872 Ky. LEXIS 138 (Ky. Ct. App. 1872).

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Opinion

Opinion op the Court by

Judge Peters :

The petition, in this case, charges, in express terms, a joint borTowing and indebtedness on the part of appellant, and Phillips.

The answer of appellant is specious, and evasive; a denial that he borrowed the money, or that it was loaned at his special instance ■and request, is not a sufficient denial of the allegations of the petition, and the court below might well have instructed the jury peremptorily to have found for the plaintiff, notwithstanding the answer.

The mere statement of the clerk that the paper copied in the record is the amendment offered by appellant, and rejected by the court, as has been repeatedly held by this court, does not sufficiently identify it, and this court is not assured thereby that it is the same paper. It should have been incorporated by a bill of exceptions, and madeja part of the record by an order of court. .As, therefore, the facte alleged were not traversed by the answer, the judgment is right on the pleadings, and the same must be affirmed.

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Opinion op the Court by

Judge Peters :

The petition, in this case, charges, in express terms, a joint borTowing and indebtedness on the part of appellant, and Phillips.

The answer of appellant is specious, and evasive; a denial that he borrowed the money, or that it was loaned at his special instance ■and request, is not a sufficient denial of the allegations of the petition, and the court below might well have instructed the jury peremptorily to have found for the plaintiff, notwithstanding the answer.

The mere statement of the clerk that the paper copied in the record is the amendment offered by appellant, and rejected by the court, as has been repeatedly held by this court, does not sufficiently identify it, and this court is not assured thereby that it is the same paper. It should have been incorporated by a bill of exceptions, and madeja part of the record by an order of court. .As, therefore, the facte alleged were not traversed by the answer, the judgment is right on the pleadings, and the same must be affirmed.

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Bluebook (online)

4 Ky. Op. 675, 1872 Ky. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breashear-v-breashear-kyctapp-1872.