Ledwidge v. Short

Court of Appeals of Kentucky

Ledwidge v. Short

2 Ky. Op. 457, 1868 Ky. LEXIS 447

DecidedOctober 15, 1868

StatusPublished

This text of 2 Ky. Op. 457 (Ledwidge v. Short) 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.

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Ledwidge v. Short, 2 Ky. Op. 457, 1868 Ky. LEXIS 447 (Ky. Ct. App. 1868).

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Opinion

Opinion oe the Oourt by

Judge Peters:

It is insisted first, that under Sec. 153 of Civ. Code mere allegations of value, or amount of damages shall not be taken as true if not answered, and must be proved. The judgment recites in this case, that the “law, and facts arising herein being submitted to the court without the intervention of a jury, and the court being advised, &c., adjudged, &e.” The foregoing recital very clearly implies that a trial by a jury was waived by the agreement of parties, and the facts as well as the law submitted to the court, as they had a right to do under Sec. 361 Civ. C. and as the issues of [458]*458fact were submitted, we must presume in the absence of any bill of exceptions, that every fact was proved necessary to authorize the judgment, including the amount of damages sustained.

. James, for appellant. Rodman, for appellee.

A motion for a new trial may have been made within.the time prescribed, but no reasons therefor were filed, merely handing them to the clerk was not sufficient. The court must be notified, and an order made showing they were filed under the authority of the court, which is not done.

■ This court cannot decide that the amended answer was improperly rejected; it is not before us, no bill of exceptions was taken, incorporating the amendment offered, so as to identify the rejected paper, and the mere statement of the clerk is insufficient, as has often been held by this court.

No errors are perceived available for a reversal, and the judgment must be affirmed.

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Opinion oe the Oourt by

Judge Peters:

It is insisted first, that under Sec. 153 of Civ. Code mere allegations of value, or amount of damages shall not be taken as true if not answered, and must be proved. The judgment recites in this case, that the “law, and facts arising herein being submitted to the court without the intervention of a jury, and the court being advised, &c., adjudged, &e.” The foregoing recital very clearly implies that a trial by a jury was waived by the agreement of parties, and the facts as well as the law submitted to the court, as they had a right to do under Sec. 361 Civ. C. and as the issues of [458]*458fact were submitted, we must presume in the absence of any bill of exceptions, that every fact was proved necessary to authorize the judgment, including the amount of damages sustained.

. James, for appellant. Rodman, for appellee.

A motion for a new trial may have been made within.the time prescribed, but no reasons therefor were filed, merely handing them to the clerk was not sufficient. The court must be notified, and an order made showing they were filed under the authority of the court, which is not done.

■ This court cannot decide that the amended answer was improperly rejected; it is not before us, no bill of exceptions was taken, incorporating the amendment offered, so as to identify the rejected paper, and the mere statement of the clerk is insufficient, as has often been held by this court.

No errors are perceived available for a reversal, and the judgment must be affirmed.

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Bluebook (online)

2 Ky. Op. 457, 1868 Ky. LEXIS 447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ledwidge-v-short-kyctapp-1868.