Thompson v. Palmer

3 Ky. Op. 386, 1869 Ky. LEXIS 441

• Court: Court of Appeals of Kentucky
• Decided: February 19, 1869
• Status: Published

Opinion

Opinion of the Court by

Judge Williams:

Appellee haying recovered judgment by default against appellant as part owner of the steamer Green for loss of certain goods, which this court has just reversed, it being heard with this case, filed a petition for a new trial after the time had elapsed in the court below, averring he had not been served with process, notwithstanding the sheriff’s return of execution; also averring that he.was not- part owner of said boat at the time of the loss of the goods.

The judgment dismissing this proceeding recites that the parties appeared by attorney and the court being sufficiently advised adjudged that the plaintiff take nothing by his petition; this judgment indicates that evidence was heard rather than that it was not, at least it does not preclude the fact of evidence being heard, and in the absence of a bill of exceptions, certifying it, we cannot say the court erred.

Nor is this legal status altered by a single deposition copied in the record by the clerk without being certified by the court.

If this was an equity instead of an ordinary action and to be tested on the evidence it would be insufficient, for it does not in the slightest degree disprove the sheriff’s return, but only slightly indicates that possibly Thompson was not a joint owner when the goods were lost. If this had been clearly made out it would have been insufficient unless he had also shown some legal reason why he did not defend the original suit, nor is the fact that it was reversably erroneous any legal reason for this proceeding, the remedy being by appeal to this court.

Bloomfield, for appellant.

Wherefore, the judgment is affirmed without damages, no supersedeas appearing.