Gwith v. Champlin

3 Ky. Op. 602, 1869 Ky. LEXIS 518

• Court: Court of Appeals of Kentucky
• Decided: April 16, 1869
• Status: Published

Opinion

Opinion of the Court by

Judge Robertson:

The pending of the petition.in equity filed by the appellees in the suit by the appellant against Arnold for enforcing a mortgage partly for the benefit of the appellees, was not available ground for abating or barring the. action at law on the note for securing the payment of which the petition in equity was filed. An action on the note and a proceeding in equity for enforcing a lien for securing payment may both be prosecuted at the same time.

But, had it been otherwise in this case, the appellant was relieved from any possible peril by thé dismission of the petition in equity before any evidence had been, given before the jury sworn to try the issue on the plea of non est factum.

Under the code such dismission was allowed and proper, and not prejudicial to the appellant. And the evidence authorized the verdict for the appellees on the issue tried.

"Wherefore the judgment is affirmed.