Johnston v. Walker

Court of Appeals of Kentucky

Johnston v. Walker

6 Ky. Op. 464, 1873 Ky. LEXIS 220

DecidedFebruary 14, 1873

StatusPublished

This text of 6 Ky. Op. 464 (Johnston v. Walker) 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

Johnston v. Walker, 6 Ky. Op. 464, 1873 Ky. LEXIS 220 (Ky. Ct. App. 1873).

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Opinion

Opinion by

Judge P'eters :

Appellant does not allege in his answer that there was another suit pending in the name of appellee against him for the same cause of action as the one set out in this. He does, aver that he was sued in equity on the notes upon which this action is founded, and for the same debt; but he fails to allege that that suit was pending when he filed his answer, and as that suit may have been dismissed, and still all he avers, be true, his answer was not sufficient to abate the action.

The payment of $50 on the debts which- were past due, and which are owing, upon a promise not to sue for the residue of the.debt at the approaching term of the circuit court was without consideration. He was under a legal obligation to pay the whole of it, and [465]*465he can not enforce a promised reward for paying only a part of it. The record shows that appellant offered to file an amended answer and that the court refused to permit the same to be filed, it then constituted no part of the record. If appellant desired to have it before this court, and its sufficiency tested here, he should have excepted to the opinion of the court; and filed a bill of exceptions referring to said amendment, making it a part of the bill of exceptions, had it signed by the judge and had it entered on the record. The mere unofficial note of the clerk that the paper copied is the rejected amended answer this court can not recognize, as has been often decided. But the amendment was properly rejected as it purported to set up a defense in bar of the action, when it contained at most matter in abatement only. But it even failed in that. It is alleged therein that the notes were given for real estate in Mayfield, and it is not averred that appellant was insolvent, and that the property on which appellee held a lien was not sufficient to pay the debt before the $50 were paid.

Stubblefield, Smith, for appellant. Williams, for appellee.

It can not therefore be said that her debt was made more secure by the payment of the $50. If he had not paid that sum, he would have owed that much more, but he would have had the same amount as additional means of payment, and other objections might be pointed out, but those named are sufficient.

Judgment affirmed.

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Opinion by

Judge P'eters :

Appellant does not allege in his answer that there was another suit pending in the name of appellee against him for the same cause of action as the one set out in this. He does, aver that he was sued in equity on the notes upon which this action is founded, and for the same debt; but he fails to allege that that suit was pending when he filed his answer, and as that suit may have been dismissed, and still all he avers, be true, his answer was not sufficient to abate the action.

The payment of $50 on the debts which- were past due, and which are owing, upon a promise not to sue for the residue of the.debt at the approaching term of the circuit court was without consideration. He was under a legal obligation to pay the whole of it, and [465]*465he can not enforce a promised reward for paying only a part of it. The record shows that appellant offered to file an amended answer and that the court refused to permit the same to be filed, it then constituted no part of the record. If appellant desired to have it before this court, and its sufficiency tested here, he should have excepted to the opinion of the court; and filed a bill of exceptions referring to said amendment, making it a part of the bill of exceptions, had it signed by the judge and had it entered on the record. The mere unofficial note of the clerk that the paper copied is the rejected amended answer this court can not recognize, as has been often decided. But the amendment was properly rejected as it purported to set up a defense in bar of the action, when it contained at most matter in abatement only. But it even failed in that. It is alleged therein that the notes were given for real estate in Mayfield, and it is not averred that appellant was insolvent, and that the property on which appellee held a lien was not sufficient to pay the debt before the $50 were paid.

Stubblefield, Smith, for appellant. Williams, for appellee.

It can not therefore be said that her debt was made more secure by the payment of the $50. If he had not paid that sum, he would have owed that much more, but he would have had the same amount as additional means of payment, and other objections might be pointed out, but those named are sufficient.

Judgment affirmed.

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6 Ky. Op. 464, 1873 Ky. LEXIS 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnston-v-walker-kyctapp-1873.