Walker v. Bingham

75 S.W.2d 1074, 256 Ky. 218, 1934 Ky. LEXIS 384

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: November 9, 1934
• Status: Published

Opinion

Opinion of the Court by

Drury, Commissioner

Affirming.

Appellant sued Sallie Hoskins, Ellen Bingham, as administratrix of W. B. Bingham, deceased, and Chas. H. Bingham upon a note upon which he alleged there was a balance due of $686.91.

The first two did not answer, and judgment went against them by default. C. H. Bingham pleaded non est factum; that issue was submitted to a jury, which found for the defendant, C. H. Bingham, and from the judgment entered on that verdict, Walker appeals.

He urges here that the verdict is flagrantly against the evidence, which is true so far as the evidence for Walker is concerned, but it is in entire harmony with the evidence for C. H. Bingham, and it was the province of the jury to determine which set of witnesses should be believed.

He also urges he was entitled to a new trial for newly discovered evidence, and he filed with his motion for a new trial the affidavits of witnesses who set out what their evidence would he, but he failed to file his own affidavit in support of his motion. .Such an omission is fatal. Chas. Taylor Sons Co. v. Hunt, 163 Ky. 120, 173 S. W. 333.

Judgment affirmed.