Pack v. Garden

Court of Appeals of Kentucky

Pack v. Garden

3 Ky. Op. 173, 1869 Ky. LEXIS 331

DecidedJuly 7, 1869

StatusPublished

This text of 3 Ky. Op. 173 (Pack v. Garden) 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

Pack v. Garden, 3 Ky. Op. 173, 1869 Ky. LEXIS 331 (Ky. Ct. App. 1869).

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Opinion

Opinion of the Court by

Judge Robertson:

Although the affirmance of the original judgment by an equal division of this court settled no principle, yet it is as binding between the parties as it could have been had this court been unanimous.

Had the facts presented in the petition for a rehearing since filed in the circuit court been shown on the former hearing, the judgment by this court on the.former record might havé been unanimously against the asserted lien. But the petition seeks a rehearing, not on the accidental discovery of new witnesses, but only on the facts that Nichols and another who testified before, would on the further examination, prove additional facts conducing conclusively to prove that there was no lien on Pack’s land which has been subjected to sale on a supposed lien claimed on it. But. both established practice and public policy forbid the disturbance of the judgment on such ground as implies inexcusable negligence in the original preparation of the case.

Wherefore, the judgment dismissing the petition for a rehearing, hard as it may seem, must be affirmed.

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Opinion of the Court by

Judge Robertson:

Although the affirmance of the original judgment by an equal division of this court settled no principle, yet it is as binding between the parties as it could have been had this court been unanimous.

Had the facts presented in the petition for a rehearing since filed in the circuit court been shown on the former hearing, the judgment by this court on the.former record might havé been unanimously against the asserted lien. But the petition seeks a rehearing, not on the accidental discovery of new witnesses, but only on the facts that Nichols and another who testified before, would on the further examination, prove additional facts conducing conclusively to prove that there was no lien on Pack’s land which has been subjected to sale on a supposed lien claimed on it. But. both established practice and public policy forbid the disturbance of the judgment on such ground as implies inexcusable negligence in the original preparation of the case.

Wherefore, the judgment dismissing the petition for a rehearing, hard as it may seem, must be affirmed.

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Bluebook (online)

3 Ky. Op. 173, 1869 Ky. LEXIS 331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pack-v-garden-kyctapp-1869.