Burchell v. Grubbs

Court of Appeals of Kentucky

Burchell v. Grubbs

230 S.W.2d 83, 313 Ky. 23, 1950 Ky. LEXIS 798

DecidedMay 16, 1950

StatusPublished

This text of 230 S.W.2d 83 (Burchell v. Grubbs) 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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Burchell v. Grubbs, 230 S.W.2d 83, 313 Ky. 23, 1950 Ky. LEXIS 798 (Ky. Ct. App. 1950).

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Opinion

Judge Cammack

Overruling motion for appeal, and denying appeal.

The appellant, T. T. Burchell, has filed a motion for an appeal from a judgment dismissing his petition as amended in the Clay Circuit Court. Burchell filed an action in the Quarterly Court wherein he sought to recover the sum of $85.15. The appellees, defendants in the action in the Quarterly Court, filed an appeal to the Clay Circuit Court. Burchell filed an amended petition setting out in full an option contract on which he had based his claim for the amount he sought to collect in the Quarterly Court. He filed a second amended petition wherein he set up his claim to an interest in the land covered in the option agreement. The amended petitions were dismissed .and judgment was entered in favor of Burchell in the Circuit Court for $64.50.

Section 726 of the Civil Code of Practice provides: “Appeals; when stand for trial and how tried. Appeals shall be docketed and stand for trial as ordinary actions, and shall be tried anew, as if no judgment had been rendered. ’ ’

Since the case of Burbage v. Squires, 3 Metc. (60 Ky.) 77, it has been held that, upon an appeal from an inferior court to a circuit court, the cause of action must be the same as that expressed in the original action. No new cause of action may be relied upon, nor may the original action be enlarged.

Wherefore, the motion for an appeal is overruled and the appeal is denied.

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Judge Cammack

Overruling motion for appeal, and denying appeal.

The appellant, T. T. Burchell, has filed a motion for an appeal from a judgment dismissing his petition as amended in the Clay Circuit Court. Burchell filed an action in the Quarterly Court wherein he sought to recover the sum of $85.15. The appellees, defendants in the action in the Quarterly Court, filed an appeal to the Clay Circuit Court. Burchell filed an amended petition setting out in full an option contract on which he had based his claim for the amount he sought to collect in the Quarterly Court. He filed a second amended petition wherein he set up his claim to an interest in the land covered in the option agreement. The amended petitions were dismissed .and judgment was entered in favor of Burchell in the Circuit Court for $64.50.

Section 726 of the Civil Code of Practice provides: “Appeals; when stand for trial and how tried. Appeals shall be docketed and stand for trial as ordinary actions, and shall be tried anew, as if no judgment had been rendered. ’ ’

Since the case of Burbage v. Squires, 3 Metc. (60 Ky.) 77, it has been held that, upon an appeal from an inferior court to a circuit court, the cause of action must be the same as that expressed in the original action. No new cause of action may be relied upon, nor may the original action be enlarged.

Wherefore, the motion for an appeal is overruled and the appeal is denied.

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Bluebook (online)

230 S.W.2d 83, 313 Ky. 23, 1950 Ky. LEXIS 798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burchell-v-grubbs-kyctapp-1950.