Cleary v. Offutt

Court of Appeals of Kentucky

Cleary v. Offutt

8 Ky. Op. 691, 1876 Ky. LEXIS 203

DecidedApril 28, 1876

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This text of 8 Ky. Op. 691 (Cleary v. Offutt) 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

Cleary v. Offutt, 8 Ky. Op. 691, 1876 Ky. LEXIS 203 (Ky. Ct. App. 1876).

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Opinion

Opinion by

Judge Lindsay:

The answer which appellant proposed to file is not made a part of the record. A paper purporting to be a copy thereof was incorporated in the record by the clerk, but that paper cannot be considered by this court. Unless a rejected pleading is made a part of the record, by order of court, or bill of exception, the clerk has no right to copy it in a transcript intended for this court. We cannot therefore determine whether or not appellant had a just or legal ground of defense, or that he was other than a nominal party to the action.

Besides, his affidavit states merely that he was kept away from court by sickness. He does not state that he or any one of his family was sick, nor that he was unable to get to the court house, or that any one was sick enough to need his attention.

The action of the circuit court in refusing to set aside the judgment was proper.

Judgment affirmed.

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Opinion by

Judge Lindsay:

The answer which appellant proposed to file is not made a part of the record. A paper purporting to be a copy thereof was incorporated in the record by the clerk, but that paper cannot be considered by this court. Unless a rejected pleading is made a part of the record, by order of court, or bill of exception, the clerk has no right to copy it in a transcript intended for this court. We cannot therefore determine whether or not appellant had a just or legal ground of defense, or that he was other than a nominal party to the action.

Besides, his affidavit states merely that he was kept away from court by sickness. He does not state that he or any one of his family was sick, nor that he was unable to get to the court house, or that any one was sick enough to need his attention.

The action of the circuit court in refusing to set aside the judgment was proper.

Judgment affirmed.

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Bluebook (online)

8 Ky. Op. 691, 1876 Ky. LEXIS 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleary-v-offutt-kyctapp-1876.