Smith v. Walton

7 Ky. 283, 4 Bibb 283, 1815 Ky. LEXIS 164

• Court: Court of Appeals of Kentucky
• Decided: December 11, 1815
• Status: Published

Opinion

OPINION of the Court, by

Judge LoGAiT.

T-^Wal-ton had brought suit against Smith, Ac. upon ah inter-faring claim to land, in which the subpomia in chancery stand delivery of a copy of the bill to Smith, appeared from the officer’s return, to have been duly executed. ®l't Smith failed to answer or make any defence, until after pronouncing the final decree. At which term, he applied for leave to file his answer, which the court re-fuse^» and which this court determined at the fall term 1813, was correctly refused, unless good cause had been shown in support of the application ; and affirmed the ([ecree 0fthat court in sustaining the complainant’s en-“T ? but (littering with respect to the maimer oí sur-veying the claims, remanded the cause for the purpose of having a decree rendered conformable thereto, and carrying the same into effect.

After the cause had been remanded, another application was made for leave to file the answer of Smith, and controvert the facts upon which the opinions of both courts were predicated. Leave was again refused, and Smith has again resorted to this court.

It is scarcely necessary to examine the grounds upon which this attempt is founded. They are, however, nothing more than the want of recollection of the service of the process, and the delivery of a copy of the bill; and it might he added, of the change of venue, which had been obtained, and which must be presumed to have been on due notice given for that purpose. The principle is> however, in itself inadmissible upon any ground tintine» tured with fraud, and which would not furnish proper ground for a bill of review.

The decree of the court below must, therefore, be affirmed with costs,