James Trabue & Co. v. Tyler

3 Ky. Op. 567, 1870 Ky. LEXIS 202

• Court: Court of Appeals of Kentucky
• Decided: February 18, 1870
• Status: Published

Opinion

Opinion of the Court by

Judge Peters:

The executions were found in the office with the returns endorsed, and it is in evidence that the office where they should have been returned was carlessly and negligently kept by the then clerk, and it is most probable from all that appears, that the writs were returned in due time. It was not the duty of the sherff to enter the returns on the book, and he and his sureties should not be made responsible for the failure of the officer whose duty it was to make the entry.

The amendment proposed changed the claim totally, from the original cause of action, requiring a different defense, and is not within the class of amendments prescribed and required by section 161, Civil Code. And it appears from the amendment tendered that appellants themselves were the purchasers of the property sold by the sheriff, which of course they knew when they brought their action;' they had taken no steps to perfect their purchase by getting a deed, and proceeding to obtain possessions of tbe property, and they could not have been surprised at the return on the writ that they were the purchasers.

Rodman & Bradley, for appellants. Randle & Tyler, for appellees.

Under the circumstances of this case it cannot be said that the court abused a sound discretion in refusing to permit the amended petition to be filed.

AAffierefore the judgment is affirmed.