James v. Carter

Court of Appeals of Kentucky (pre-1976)

James v. Carter

118 S.W.2d 558, 274 Ky. 273, 1938 Ky. LEXIS 256

CourtCourt of Appeals of Kentucky (pre-1976)

DecidedJune 17, 1938

StatusPublished

Cited by2 cases

This text of 118 S.W.2d 558 (James v. Carter) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky (pre-1976) primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

James v. Carter, 118 S.W.2d 558, 274 Ky. 273, 1938 Ky. LEXIS 256 (Ky. 1938).

Pincite

Opinion

Opinion of the Court by

Drury, Commissioner—

Affirming.

Edith James and Maggie Leete have appealed from an equity judgment recovered against them by A. C. Carter, on Sept. 9th, 1936.

Petition was filed on July 18th, 1936. The parties were all duly summoned, and on Sept. 9th, 1936, that being the third day of the Floyd Circuit Court, no answer having been filed, judgment was taken against appellants by default. On Sept. 16th, 1936, a motion was made by appellants to set aside the default judgment and an answer was tendered which the court subsequently treated as filed, and on October 24th, 1936, we find this order:

“This cause having been submitted upon motion of the defendant, Edith James, to set aside the judgment entered herein on Order Book No. 38, page 316, on Sept. 9th, 1936, the court being advised, overruled said motion, to which ruling of the court the said defendant objects and excepts.

*274 “It is further ordered that the answer filed herein by the defendants be and the same is stricken from the record.”'

Thus we see there were two judgments rendered by the Floyd Circuit Court, (a) the default judgment of Sept. 9th, 1936, which the court refused to set aside by its judgment (b) of October 24th, 1936. From either or both of which, either Edith James or Maggie Leete, or both, could have prosecuted an appeal, but they have elected to prosecute their appeal from the judgment (a) of Sept. 9th, 1936, whereas they .should have prosecuted their appeal from the judgment (b) of Oct. 24th, 1936, for if any error was committed, that error was contained in this last judgment (b) when the court refused to set aside the default judgment (a) of Sept. 9th, and struck appellants’ answer from the record. Since no appeal has been prosecuted from the judgment (b) of Oct. 24th, 1936, it follows that the judgment (a) of Sept. 9th, 1936, from which this appeal is prosecuted, must be and it is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Opinion of the Court by

Drury, Commissioner—

Affirming.

Edith James and Maggie Leete have appealed from an equity judgment recovered against them by A. C. Carter, on Sept. 9th, 1936.

Petition was filed on July 18th, 1936. The parties were all duly summoned, and on Sept. 9th, 1936, that being the third day of the Floyd Circuit Court, no answer having been filed, judgment was taken against appellants by default. On Sept. 16th, 1936, a motion was made by appellants to set aside the default judgment and an answer was tendered which the court subsequently treated as filed, and on October 24th, 1936, we find this order:

“This cause having been submitted upon motion of the defendant, Edith James, to set aside the judgment entered herein on Order Book No. 38, page 316, on Sept. 9th, 1936, the court being advised, overruled said motion, to which ruling of the court the said defendant objects and excepts.

*274 “It is further ordered that the answer filed herein by the defendants be and the same is stricken from the record.”'

Thus we see there were two judgments rendered by the Floyd Circuit Court, (a) the default judgment of Sept. 9th, 1936, which the court refused to set aside by its judgment (b) of October 24th, 1936. From either or both of which, either Edith James or Maggie Leete, or both, could have prosecuted an appeal, but they have elected to prosecute their appeal from the judgment (a) of Sept. 9th, 1936, whereas they .should have prosecuted their appeal from the judgment (b) of Oct. 24th, 1936, for if any error was committed, that error was contained in this last judgment (b) when the court refused to set aside the default judgment (a) of Sept. 9th, and struck appellants’ answer from the record. Since no appeal has been prosecuted from the judgment (b) of Oct. 24th, 1936, it follows that the judgment (a) of Sept. 9th, 1936, from which this appeal is prosecuted, must be and it is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

118 S.W.2d 558, 274 Ky. 273, 1938 Ky. LEXIS 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-v-carter-kyctapphigh-1938.

Opinion

Related

Cite This Page — Counsel Stack