Pratt v. Samuels

Court of Appeals of Kentucky

Pratt v. Samuels

1 Ky. Op. 516, 1867 Ky. LEXIS 320

DecidedApril 26, 1867

StatusPublished

This text of 1 Ky. Op. 516 (Pratt v. Samuels) 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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Pratt v. Samuels, 1 Ky. Op. 516, 1867 Ky. LEXIS 320 (Ky. Ct. App. 1867).

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Opinion

Opinion or the Court by

Judge Hardin:

As the appellees, A. L. and J. Hardin, in their answer to the original petition of appellant deny that they were indebted to their codefendant Samuel in any sum whatever at the institution of the action, we think this answer, though filed in response to the original petition, should be taken to sufficiently controvert the more specific averments of indebtedness from them to Samuel [517]*517made in the amended petition, subsequently filed, and that under the issue so formed the burden was on the appellant of proving an indebtedness from the Hardins to Samuel. The suits of Clarkson against Hardins which appear to have been consolidated with this, without objection, furnish the only evidence which was before the court as to the alleged indebtedness of said Hardins to Samuel and from that it appears that said Hardins’ notes for the balance of the price of property purchased by them of Samuel, and which embraced all they owed him, had been assigned and transferred to Clarkson before this suit was brought.

Stevenson & Muers, for Appellant. Simmons, and Pryor & Chambers, for Appellee.

Therefore, perceiving no error in the judgment dismissing the appellant’s petition, the same is affirmed.

This court has repeatedly decided that the right to prosecute a cross-appeal as provided by section 895 of the Civil Code, is only allowed in behalf of an appellee against the appellant and not against a coappellee. Said Hardins’ cross-appeal against Clarkson is, therefore, dismissed.

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Opinion or the Court by

Judge Hardin:

As the appellees, A. L. and J. Hardin, in their answer to the original petition of appellant deny that they were indebted to their codefendant Samuel in any sum whatever at the institution of the action, we think this answer, though filed in response to the original petition, should be taken to sufficiently controvert the more specific averments of indebtedness from them to Samuel [517]*517made in the amended petition, subsequently filed, and that under the issue so formed the burden was on the appellant of proving an indebtedness from the Hardins to Samuel. The suits of Clarkson against Hardins which appear to have been consolidated with this, without objection, furnish the only evidence which was before the court as to the alleged indebtedness of said Hardins to Samuel and from that it appears that said Hardins’ notes for the balance of the price of property purchased by them of Samuel, and which embraced all they owed him, had been assigned and transferred to Clarkson before this suit was brought.

Stevenson & Muers, for Appellant. Simmons, and Pryor & Chambers, for Appellee.

Therefore, perceiving no error in the judgment dismissing the appellant’s petition, the same is affirmed.

This court has repeatedly decided that the right to prosecute a cross-appeal as provided by section 895 of the Civil Code, is only allowed in behalf of an appellee against the appellant and not against a coappellee. Said Hardins’ cross-appeal against Clarkson is, therefore, dismissed.

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Bluebook (online)

1 Ky. Op. 516, 1867 Ky. LEXIS 320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pratt-v-samuels-kyctapp-1867.