Hester v. Graham

Court of Appeals of Kentucky

Hester v. Graham

3 Ky. Op. 436, 1869 Ky. LEXIS 479

DecidedFebruary 20, 1869

StatusPublished

This text of 3 Ky. Op. 436 (Hester v. Graham) 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

Hester v. Graham, 3 Ky. Op. 436, 1869 Ky. LEXIS 479 (Ky. Ct. App. 1869).

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Opinion

Opinion of the Court by

Judge Hardin:

As we construe the original petition, it seeks a recovery on the agreement alleged in the second paragraph to have been made by the defendants, that they would pay the first note and also rents for the use of the mills and damages which had been sustained by the plaintiffs in consequence of defendants’ negligence.

The amended petition filed on the 23rd of August had the effect of changing the action from a suit founded on the alleged parol promise to one on the three notes which had then matured, according to the original contract. This was virtually bringing a new suit on the notes; and the judgment rendered on the same day without the service of process on the amended petition, not being authorized by the original petition, but inconsistent with it, was in our opinion erroneous.

Wherefore, the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

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Opinion of the Court by

Judge Hardin:

As we construe the original petition, it seeks a recovery on the agreement alleged in the second paragraph to have been made by the defendants, that they would pay the first note and also rents for the use of the mills and damages which had been sustained by the plaintiffs in consequence of defendants’ negligence.

The amended petition filed on the 23rd of August had the effect of changing the action from a suit founded on the alleged parol promise to one on the three notes which had then matured, according to the original contract. This was virtually bringing a new suit on the notes; and the judgment rendered on the same day without the service of process on the amended petition, not being authorized by the original petition, but inconsistent with it, was in our opinion erroneous.

Wherefore, the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

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Bluebook (online)

3 Ky. Op. 436, 1869 Ky. LEXIS 479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hester-v-graham-kyctapp-1869.