Deshong v. Cain

Court of Appeals of Kentucky

Deshong v. Cain

5 Ky. Op. 629, 1871 Ky. LEXIS 532

DecidedOctober 5, 1871

StatusPublished

This text of 5 Ky. Op. 629 (Deshong v. Cain) 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

Deshong v. Cain, 5 Ky. Op. 629, 1871 Ky. LEXIS 532 (Ky. Ct. App. 1871).

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Opinion

Opinion by

Judge Haedin:

This case is now, for the second time, in this court on the appeal of Deshong. The first judgment rendered, and which was reversed (1 Duvall 309), dismissed the petition on demurrer. The substance of the petition is set out in the former opinion of this court, and was sufficient as therein decided if sustained by proof, to authorize an injunction of the judgment of $300.00 in favor of the appellee and to reverse and set aiide said judgment.

The answer filed on the return of the cause controverted the material averments of the petition on which relief was sought, and on hearing the court again dismissed the action.

It sufficiently appears from the testimony of Commissioner Herd and othersi that his first report was in favor of Deshong for about the sum of $300.00 on a settlement of the partnership, and although this report was set aside, a second report was made substantially reproducing it. But the court afterwards, on final trial, contrary to the commissioners’ views, rendered a judgment for Cain from which D'eshong prayed an appeal, but was prevented from prosecuting it by the losing of the papers.

It does not appear that said judgment was rendered for Cain by mistake but was the judicial determination of the court, and whether it was right or wrong could only appear from the proceedings as reproduced in the subsequent suit; and unless that preliminary object was effected with at least reasonable certainty, it seems to us neither the circuit court nor this court should disturb the judgment. It is manifest from the evidence and report of the last commissioner that the attempt to so reestablish even the substance of the pleadings, papers and evidence on which the court acted as to enable a revising court to know the grounds of said judgment, has utterly failed.

Hazelrigg, Winn, for appellant. Turner, for appellee.

We are of the opinion, therefore, that the action was properly-dismissed.

Wherefore, the judgment is affirmed.

Judge Peters did not preside in this case.

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Opinion by

Judge Haedin:

This case is now, for the second time, in this court on the appeal of Deshong. The first judgment rendered, and which was reversed (1 Duvall 309), dismissed the petition on demurrer. The substance of the petition is set out in the former opinion of this court, and was sufficient as therein decided if sustained by proof, to authorize an injunction of the judgment of $300.00 in favor of the appellee and to reverse and set aiide said judgment.

The answer filed on the return of the cause controverted the material averments of the petition on which relief was sought, and on hearing the court again dismissed the action.

It sufficiently appears from the testimony of Commissioner Herd and othersi that his first report was in favor of Deshong for about the sum of $300.00 on a settlement of the partnership, and although this report was set aside, a second report was made substantially reproducing it. But the court afterwards, on final trial, contrary to the commissioners’ views, rendered a judgment for Cain from which D'eshong prayed an appeal, but was prevented from prosecuting it by the losing of the papers.

It does not appear that said judgment was rendered for Cain by mistake but was the judicial determination of the court, and whether it was right or wrong could only appear from the proceedings as reproduced in the subsequent suit; and unless that preliminary object was effected with at least reasonable certainty, it seems to us neither the circuit court nor this court should disturb the judgment. It is manifest from the evidence and report of the last commissioner that the attempt to so reestablish even the substance of the pleadings, papers and evidence on which the court acted as to enable a revising court to know the grounds of said judgment, has utterly failed.

Hazelrigg, Winn, for appellant. Turner, for appellee.

We are of the opinion, therefore, that the action was properly-dismissed.

Wherefore, the judgment is affirmed.

Judge Peters did not preside in this case.

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Bluebook (online)

5 Ky. Op. 629, 1871 Ky. LEXIS 532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deshong-v-cain-kyctapp-1871.