Smith's heirs v. Nowell

Court of Appeals of Kentucky

Smith's heirs v. Nowell

12 Ky. 165, 2 Litt. 165, 1822 Ky. LEXIS 196

DecidedOctober 28, 1822

StatusPublished

This text of 12 Ky. 165 (Smith's heirs v. Nowell) 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

Smith's heirs v. Nowell, 12 Ky. 165, 2 Litt. 165, 1822 Ky. LEXIS 196 (Ky. Ct. App. 1822).

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Opinion

THIS is an appeal from a judgment rendered by the circuit court on a report made out by commissioners under the occupying claimant law.

Upon the return of the commissioners’ report to court, the appellants objected to its sufficiency ; and, among other exceptions, insisted, that the commissioners had reported rents to commence from the 10th of June 1818, when the rents should not have commenced until the 17th of March 1820. The court sustained the objection, as to the time rents should commence, but overruled the other exceptions to the report.

The appellants then moved the court to quash the report; but the court overruled the motion, and after correcting tiie report as to the time the rent should commence, by crediting the appellants with the excess which the court supposed was improperly charged against them for rents, judgment was rendered on the report.

So far as the exceptions taken by the appellants to the report of the commissioners were overruled, the court unquestionably decided correctly. Those exceptions have been repeatedly held untenable by this court, and need not now be more particularly noticed. And after overruling those exceptions, it was, no doubt, correct in the court to refuse to quash the re. port. Tf the exception which was sustained by the court, had rendered it impracticable for the court, by inspecting che report, to ascertain the balance between the parties, there would have been a propriety in setting aside the report, and requiring the commissioners again to act upon the subject; but such is not the character of the exception which was sustained by the court. The exception barely went to the time of commencing the charge for rents ; and by an inspection of the report, the court was enabled to ascertain, with absolute certainty, the balance between the parties, [166]*166after deducting the excess of rents, which, according to its opinion, bad been improperly charged to the appellants. It would, therefore, have been perfectly useless, to quash the report, and again put the parties to the expence of calling on the commissioners to do that which the court, without their aid, might correct, ly do..

The judgment must be affirmed with costs.

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THIS is an appeal from a judgment rendered by the circuit court on a report made out by commissioners under the occupying claimant law.

Upon the return of the commissioners’ report to court, the appellants objected to its sufficiency ; and, among other exceptions, insisted, that the commissioners had reported rents to commence from the 10th of June 1818, when the rents should not have commenced until the 17th of March 1820. The court sustained the objection, as to the time rents should commence, but overruled the other exceptions to the report.

The appellants then moved the court to quash the report; but the court overruled the motion, and after correcting tiie report as to the time the rent should commence, by crediting the appellants with the excess which the court supposed was improperly charged against them for rents, judgment was rendered on the report.

So far as the exceptions taken by the appellants to the report of the commissioners were overruled, the court unquestionably decided correctly. Those exceptions have been repeatedly held untenable by this court, and need not now be more particularly noticed. And after overruling those exceptions, it was, no doubt, correct in the court to refuse to quash the re. port. Tf the exception which was sustained by the court, had rendered it impracticable for the court, by inspecting che report, to ascertain the balance between the parties, there would have been a propriety in setting aside the report, and requiring the commissioners again to act upon the subject; but such is not the character of the exception which was sustained by the court. The exception barely went to the time of commencing the charge for rents ; and by an inspection of the report, the court was enabled to ascertain, with absolute certainty, the balance between the parties, [166]*166after deducting the excess of rents, which, according to its opinion, bad been improperly charged to the appellants. It would, therefore, have been perfectly useless, to quash the report, and again put the parties to the expence of calling on the commissioners to do that which the court, without their aid, might correct, ly do..

The judgment must be affirmed with costs.

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Bluebook (online)

12 Ky. 165, 2 Litt. 165, 1822 Ky. LEXIS 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smiths-heirs-v-nowell-kyctapp-1822.