Mt. Sterling & Spencer Turnpike Road Co. v. Slocum

Court of Appeals of Kentucky

Mt. Sterling & Spencer Turnpike Road Co. v. Slocum

5 Ky. Op. 109, 1872 Ky. LEXIS 227

DecidedFebruary 18, 1872

StatusPublished

This text of 5 Ky. Op. 109 (Mt. Sterling & Spencer Turnpike Road Co. v. Slocum) 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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Mt. Sterling & Spencer Turnpike Road Co. v. Slocum, 5 Ky. Op. 109, 1872 Ky. LEXIS 227 (Ky. Ct. App. 1872).

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Opinion

Opinion by

Judge Lindsay:

The circuit court did not err 'to appellant’s prejudice in striking from the case so much of the answer as seeks to make Gibbons a party to this litigation.

It is manifest that when Slocum gave up his contract the Turnpike Company undertook and agreed to pay him for so much work as he had1 then done, at the contract rate. The estimate of the amount of such work was to be made by the company’s own engineer; it was, therefore, 'the duty of the appellant 'to ascertain the amount due to appellee, and it had no light to involve him in litigation with Gibbons in order to have determined a matter of fact which the company had agreed to have settled 'by one of its own officers.

It is not denied that the amount for which judgment was rendered in favor of Slocum was due from the company, and there is no evidence tending to show that Gibbons had any claim upon such amount.

Turner, Brock, R. Reid, for appellant. Apperson, for appellee.

The bill of exceptions does not show what appellant expected to prove by either one of the rejected witnesses. It is, therefore, unnecessary to discuss their competency.

We perceive no error in the proceedings in the court below which will authorize a reversal.

Judgment affirmed. Gibbons having no interest in the matters involved in this controversy his appeal is dismissed.

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Opinion by

Judge Lindsay:

The circuit court did not err 'to appellant’s prejudice in striking from the case so much of the answer as seeks to make Gibbons a party to this litigation.

It is manifest that when Slocum gave up his contract the Turnpike Company undertook and agreed to pay him for so much work as he had1 then done, at the contract rate. The estimate of the amount of such work was to be made by the company’s own engineer; it was, therefore, 'the duty of the appellant 'to ascertain the amount due to appellee, and it had no light to involve him in litigation with Gibbons in order to have determined a matter of fact which the company had agreed to have settled 'by one of its own officers.

It is not denied that the amount for which judgment was rendered in favor of Slocum was due from the company, and there is no evidence tending to show that Gibbons had any claim upon such amount.

Turner, Brock, R. Reid, for appellant. Apperson, for appellee.

The bill of exceptions does not show what appellant expected to prove by either one of the rejected witnesses. It is, therefore, unnecessary to discuss their competency.

We perceive no error in the proceedings in the court below which will authorize a reversal.

Judgment affirmed. Gibbons having no interest in the matters involved in this controversy his appeal is dismissed.

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Bluebook (online)

5 Ky. Op. 109, 1872 Ky. LEXIS 227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mt-sterling-spencer-turnpike-road-co-v-slocum-kyctapp-1872.