Culbertson v. Brashear

Court of Appeals of Kentucky

Culbertson v. Brashear

7 Ky. Op. 541, 1874 Ky. LEXIS 198

DecidedFebruary 28, 1874

StatusPublished

This text of 7 Ky. Op. 541 (Culbertson v. Brashear) 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

Culbertson v. Brashear, 7 Ky. Op. 541, 1874 Ky. LEXIS 198 (Ky. Ct. App. 1874).

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Opinion

Opinion by

Judge Lindsay:

The petition of Mrs. Brashears shows that she was sick, and unable to attend court at any time during the term at which the judgment was taken against her by default. She states further that this was one of the reasons she did not make defense. The fact that she was ignorant of business, and did not understand the objects of appellants’ -suit, and relied on her husband and son, ought not to militate against her in view of the fact that she could not have looked after her interest and made defense, even had she been desirous of doing so. It may well be assumed that her sickness was to some extent the cause of her failing to inquire into the nature of the proceeding that had been instituted against her.

Appellants were in court and waived notice, when appellee presented her petition and moved for an order of injunction, and consented that the actions should be submitted on exceptions to sale, etc. This had the effect of bringing them- before the court for all the purposes of the petition. The injunction asked for was intended to be merely temporary. It was a provisional remedy ancillary to the relief which appellee claimed she was ultimately entitled to. Being in court, the order of warning was unnecessary. Mrs. Brashear was a competent' witness. Her evidence is undisputed.

Williams, for appellants. Owens & Ellis, for appellees.

It authorized the judgment granting the new trial, and warranted the dismissal of appellant’s petition, so far as it sought to subject her lands to the payment of her husband’s debts.

Judgment affirmed.

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Opinion by

Judge Lindsay:

The petition of Mrs. Brashears shows that she was sick, and unable to attend court at any time during the term at which the judgment was taken against her by default. She states further that this was one of the reasons she did not make defense. The fact that she was ignorant of business, and did not understand the objects of appellants’ -suit, and relied on her husband and son, ought not to militate against her in view of the fact that she could not have looked after her interest and made defense, even had she been desirous of doing so. It may well be assumed that her sickness was to some extent the cause of her failing to inquire into the nature of the proceeding that had been instituted against her.

Appellants were in court and waived notice, when appellee presented her petition and moved for an order of injunction, and consented that the actions should be submitted on exceptions to sale, etc. This had the effect of bringing them- before the court for all the purposes of the petition. The injunction asked for was intended to be merely temporary. It was a provisional remedy ancillary to the relief which appellee claimed she was ultimately entitled to. Being in court, the order of warning was unnecessary. Mrs. Brashear was a competent' witness. Her evidence is undisputed.

Williams, for appellants. Owens & Ellis, for appellees.

It authorized the judgment granting the new trial, and warranted the dismissal of appellant’s petition, so far as it sought to subject her lands to the payment of her husband’s debts.

Judgment affirmed.

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Bluebook (online)

7 Ky. Op. 541, 1874 Ky. LEXIS 198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/culbertson-v-brashear-kyctapp-1874.