Walker v. Vance

1 Ky. Op. 68, 1867 Ky. LEXIS 227

• Court: Court of Appeals of Kentucky
• Decided: January 8, 1867
• Status: Published

Opinion

Opinion of the Court by

Judge Robertson:

As the appellant’s motion to set aside the judgment foreclosing the mortgage and ordering a sale of the mortgaged estate was not made until two months after the term at 'which it was rendered, the chancellor had no power to open the case on the appellant’s affidavit, not that he had discovered important evidence, but only that before tbe bearing he had employed counsel to file an answer ■and, expecting that they would do so, he went to Chicago on important business and did not learn until some time after the judgment that no answer had been filed. Negligence of counsel is no .■ground for a new trial, and, moreover, the appellant’s affidavit shows as much negligence by himself as by his attorneys. His ■absence on bis own business and especially his failure so long not -even to inquire about Ms case was apparently voluntary and not such inevitable necessity as would, according to any principle of law or practice of equity, excuse his omission to answer.

And besides it is very questionable whether the answer he proposed to file could he made available as a defense to any extent.

Wherefore, the judgment overruling his motion is affirmed.