Sullivan v. Mallony

Court of Appeals of Kentucky

Sullivan v. Mallony

2 Ky. Op. 56, 1868 Ky. LEXIS 294

DecidedJanuary 17, 1868

StatusPublished

This text of 2 Ky. Op. 56 (Sullivan v. Mallony) 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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Sullivan v. Mallony, 2 Ky. Op. 56, 1868 Ky. LEXIS 294 (Ky. Ct. App. 1868).

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Opinion

Opinion of the Court by

Judge Hardin :

As no record of any former suit between tbe parties is incorporated in the record in this case, there is no apparent ground for the objection, insisted on for the appellant, that the cause of action was barred by a previous judgment.

The account referred to in the original petition as the foundation of the action charges the appellant with rent from the 25th day of February, 1860, to the 1st of January, 1863, and we think this account, with the amount of indebtedness in the petition referring to it, charging imports an allegation that the defendant used the premises from said 25th of February, 1860, to the 1st of January, 1863, and as the answer did not controvert ’this fact, the court properly treated it as admitted by the pleadings, and the instruction predicated on this view was not erroneous.

The bill of exceptions stating the action of the court as'to instruction does not appear to have been signed by the court, but waiving this objection, we do not perceive any error to the appellant’s prejudice in the ruling of the court in relation to instructions.

The verdict, seems to have been authorized by the evidence certi[57]*57fled in the record, but if it was not, it is not stated in the bill of exceptions that that was all the evidence in the cause.

Petrie & Bibb, for appellant. Kennedy, for appellee.

Wherefore, the judgment is affirmed.

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Opinion of the Court by

Judge Hardin :

As no record of any former suit between tbe parties is incorporated in the record in this case, there is no apparent ground for the objection, insisted on for the appellant, that the cause of action was barred by a previous judgment.

The account referred to in the original petition as the foundation of the action charges the appellant with rent from the 25th day of February, 1860, to the 1st of January, 1863, and we think this account, with the amount of indebtedness in the petition referring to it, charging imports an allegation that the defendant used the premises from said 25th of February, 1860, to the 1st of January, 1863, and as the answer did not controvert ’this fact, the court properly treated it as admitted by the pleadings, and the instruction predicated on this view was not erroneous.

The bill of exceptions stating the action of the court as'to instruction does not appear to have been signed by the court, but waiving this objection, we do not perceive any error to the appellant’s prejudice in the ruling of the court in relation to instructions.

The verdict, seems to have been authorized by the evidence certi[57]*57fled in the record, but if it was not, it is not stated in the bill of exceptions that that was all the evidence in the cause.

Petrie & Bibb, for appellant. Kennedy, for appellee.

Wherefore, the judgment is affirmed.

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Bluebook (online)

2 Ky. Op. 56, 1868 Ky. LEXIS 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-mallony-kyctapp-1868.