McNamara v. Sibley

4 Ky. Op. 397, 1870 Ky. LEXIS 388

• Court: Court of Appeals of Kentucky
• Decided: September 15, 1870
• Status: Published

Opinion

Opinion oe the Court by

Judge Eobertson :

The statute requires no demand or affidavit in this case, especially as there is no administrator.

But, while the pleadings and exhibits manifest a right to foreclose the mortgage, in due time, for whatever may be due upon it, the. allegations, in the answer, of undisclosed payments and of usuary to a large amount not precisely ascertained by the appellants, but known by the appellees, though vague and indefinite, were nevertheless issuable, and, rents averred by the appellees, entitled the appellants to some time for preparation either by requiring a discovery or by an inquisition before the master.

The forced submission for final decree only a few days after the filing of the answer was therefore premature and unauthorized, and the judgment for foreclosure and sale erroneous, especially as payments and reclaimable usury to some extent as alleged are not controverted by the appellees.

Wherefore, the 'judgment is reversed, and the cause remanded for further proceedings by a discovery the appellants have not yet prayed for; and for otherwise litigating the question of alleged payments and usury.