Orr v. Hedger

Court of Appeals of Kentucky

Orr v. Hedger

2 Ky. Op. 51, 1868 Ky. LEXIS 290

DecidedJanuary 17, 1868

StatusPublished

This text of 2 Ky. Op. 51 (Orr v. Hedger) 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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Orr v. Hedger, 2 Ky. Op. 51, 1868 Ky. LEXIS 290 (Ky. Ct. App. 1868).

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Opinion

Opinion oe the Court by

Judge Peters :

It seems that the amended answer setting up and pleading the cost of repairs, made upon the premises as a counter claim, was [52]*52by leave of court filed, aud time given appellee to reply, and on that branch of the cause a continuance granted.

Blackwell, for appellant.

Two other amendments were offered and rejected by the court, as the orders show, but whether those found copied in this record are the samé which the court below rejected, this court is not furnished with the means of knowing,, the mere memoranda of the clerk do not authorize this court so to regard them; if appellant desired to have the judgment of this court upon the sufficiency of his amended answer, he could only do so by excepting to the opinion of the cout refusing him permission to file them, and then presenting and filing a bill of exceptions, making said rejected amended answer a part thereof, and thus incorporating them in the record, which is not done here. It is no part of the official duty of the clerk to state the rejected pleadings are the same as that of the copies, and this Court cannot, upon that unofficial statement, so treat them; this principle has often been settled by this court.

As therefore the amended pleadings rejected by the court below are not properly, before this court, the presumption is that the ruling of the- court below was correct. And no error being perceived prejudicial to appellants, the judgment is affirmed.

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Opinion oe the Court by

Judge Peters :

It seems that the amended answer setting up and pleading the cost of repairs, made upon the premises as a counter claim, was [52]*52by leave of court filed, aud time given appellee to reply, and on that branch of the cause a continuance granted.

Blackwell, for appellant.

Two other amendments were offered and rejected by the court, as the orders show, but whether those found copied in this record are the samé which the court below rejected, this court is not furnished with the means of knowing,, the mere memoranda of the clerk do not authorize this court so to regard them; if appellant desired to have the judgment of this court upon the sufficiency of his amended answer, he could only do so by excepting to the opinion of the cout refusing him permission to file them, and then presenting and filing a bill of exceptions, making said rejected amended answer a part thereof, and thus incorporating them in the record, which is not done here. It is no part of the official duty of the clerk to state the rejected pleadings are the same as that of the copies, and this Court cannot, upon that unofficial statement, so treat them; this principle has often been settled by this court.

As therefore the amended pleadings rejected by the court below are not properly, before this court, the presumption is that the ruling of the- court below was correct. And no error being perceived prejudicial to appellants, the judgment is affirmed.

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Bluebook (online)

2 Ky. Op. 51, 1868 Ky. LEXIS 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orr-v-hedger-kyctapp-1868.