Green v. Winston

1 Ky. Op. 347, 1863 Ky. LEXIS 84

• Court: Court of Appeals of Kentucky
• Decided: February 3, 1863
• Status: Published

Opinion

Opinion of the Oourt by

Judge Williams:

. Winston obtained a judgment against Cox for land then in controversy.

Cox appeals from the judgment and, on executing bond, obtained a supersedeas, that judgment being affirmed.

Winston brought this suit against Cox and appellants, as his surety on the supersedeas bond, to recover $47.90 costs on the affirmance, for rents which he alleges to have been worth $500 after the execution of the bond, also $250 attorney’s fees.

For want of answer the court below rendered judgment against appellant for $547.09, without evidence, and without the intervention of a jury, to correct which this appeal is prosecuted.

“Allegations of value, or of amount of damage, shall not be considered as true by the failure to controvert them.” - Section 153, Civil Code.

The court manifestly erred in assessing the value of the rents without proof. Daniels v. Judah, 14 B. Mon. 316.

No attorney’s fee was embraced by the bond. This case is essentially different from the cases of Harris v. Ray, 15 B. Mon. 630; Francis v. Francis, 18 B. Mon. 60.

Wherefore, the judgment is reversed.