McClendon v. Stewart

Court of Appeals of Kentucky

McClendon v. Stewart

1 Ky. Op. 192, 1866 Ky. LEXIS 265

DecidedJune 23, 1866

StatusPublished

This text of 1 Ky. Op. 192 (McClendon v. Stewart) 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

McClendon v. Stewart, 1 Ky. Op. 192, 1866 Ky. LEXIS 265 (Ky. Ct. App. 1866).

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Opinion

Opinion op the, Court by

Judge Peters:

Action was prosecuted for the recovery of a part of a tract of laud claimed by appellees, and a verdict and judgment having been rendered against appellant for twenty-eight acres of land, and $200' in damages, he has appealed to this court.

In the trial in the court below, no evidence was offered as to the value of rents of the land recovered, nor was the quality or condition of the land in appellant’s possession proved so as to enable the jury to form any opinion on the subject of the value of rents and profits.

After giving the boundary and location of the tract of land which, they allege, include the land for which this action was brought, and their derivation of title to the same, appellees allege that the appellant had then and for three years past had held a part of the above-described tract of land in his possession, without right, and continues so to hold the same, to the plaintiff’s damage, $500. But do not make any allegations as to the quality or value of the part charged to be in possession of appellant, nor of the annual rents and profits, and fail to give such a description of the land as would enable the jury to determine what the annual rents would be reasonably worth.

The verdict of the jury for the $200, consequently, was not sustained by the evidence nor authorized by the pleadings.

The amended answer offered by appellant stated facts pertinent and proper for his defense. It does not appear that by permitting it to be filed any delay in the trial of the cause would have been produced, and it was responsive to material facts alleged in the [193]*193petition. And although this court might not deem the rejection of said amended answer, of itself, such an abuse of a sound discretion by the court below or an error for which the judgment would be reversed, yet as the error first noticed must be fatal, and the cause for that reason remanded, the appellant should be permitted to file said amended answer.

Wherefore, the judgment is reversed and the cause remanded, with instructions to award a new trial and for other proceedings consistent with this opinion.

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Opinion op the, Court by

Judge Peters:

Action was prosecuted for the recovery of a part of a tract of laud claimed by appellees, and a verdict and judgment having been rendered against appellant for twenty-eight acres of land, and $200' in damages, he has appealed to this court.

In the trial in the court below, no evidence was offered as to the value of rents of the land recovered, nor was the quality or condition of the land in appellant’s possession proved so as to enable the jury to form any opinion on the subject of the value of rents and profits.

After giving the boundary and location of the tract of land which, they allege, include the land for which this action was brought, and their derivation of title to the same, appellees allege that the appellant had then and for three years past had held a part of the above-described tract of land in his possession, without right, and continues so to hold the same, to the plaintiff’s damage, $500. But do not make any allegations as to the quality or value of the part charged to be in possession of appellant, nor of the annual rents and profits, and fail to give such a description of the land as would enable the jury to determine what the annual rents would be reasonably worth.

The verdict of the jury for the $200, consequently, was not sustained by the evidence nor authorized by the pleadings.

The amended answer offered by appellant stated facts pertinent and proper for his defense. It does not appear that by permitting it to be filed any delay in the trial of the cause would have been produced, and it was responsive to material facts alleged in the [193]*193petition. And although this court might not deem the rejection of said amended answer, of itself, such an abuse of a sound discretion by the court below or an error for which the judgment would be reversed, yet as the error first noticed must be fatal, and the cause for that reason remanded, the appellant should be permitted to file said amended answer.

Wherefore, the judgment is reversed and the cause remanded, with instructions to award a new trial and for other proceedings consistent with this opinion.

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Bluebook (online)

1 Ky. Op. 192, 1866 Ky. LEXIS 265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclendon-v-stewart-kyctapp-1866.