McFall v. Boone's Trustees

2 Ky. Op. 307, 1868 Ky. LEXIS 386

• Court: Court of Appeals of Kentucky
• Decided: June 5, 1868
• Status: Published

Opinion

Opinion oe the Oourt by

Judge Peters:

It appears from the petition, that Boone had, before the institution of the action, conveyed all his estate, real and personal, to the plaintiffs which passed to them the legal title, and the right to maintain the action in their own names, and the petition therefore stated the requisite facts to constitute a cause of action in them.

As to the other grounds relied on for a reversal, it may be observed that it is not . sufficient to show that the appellant had a good excuse for being absent from the court; but he must show that he had a good defense to the action by setting forth that defense to enable the court to judge of it’s sufficiency, and that he had made the necessary preparations or efforts to be ready to try the case, and that he was prevented from making his defense by his absence, which was unavoidable.

Turner & Twyman, for appellant. Porter & Greathouse, for appellee.

Two of the essential elements necessary, indeed, indispensible to authorize the court to set aside the judgment, and award a new trial, were omitted in the affidavit of appellant.

Wherefore, the judgment is affirmed.