Wallingford v. Dayle

Court of Appeals of Kentucky

Wallingford v. Dayle

1 Ky. Op. 213, 1866 Ky. LEXIS 277

DecidedSeptember 19, 1866

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This text of 1 Ky. Op. 213 (Wallingford v. Dayle) 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

Wallingford v. Dayle, 1 Ky. Op. 213, 1866 Ky. LEXIS 277 (Ky. Ct. App. 1866).

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Opinion

Opinion of the Court by

Judge Robertson :

While we gravely apprehend that S. Dayle never paid for the com he bought from A. Sandford and that the alleged payment to Elston as Sandford’s ostensible agent was a collusive fabrication, we cannot see how the appellant can avoid the bar to his reoovery of it as creditor of Sandford, which Dayle pleads in the judgment of the quarterly court to the effect that Elston’s receipt was genuine proof of a valid payment.

Although the appeal to the Circuit Court operated as a merger of that judgment and is an original suit in that court as long as prosecuted, yet its voluntary discontinuance by the plaintiff left the judgment in as full force as it was before the appeal suspended its vitality.

Wherefore, the judgment dismissing Wallingford’s petition to subject that debt must be affirmed.

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Opinion of the Court by

Judge Robertson :

While we gravely apprehend that S. Dayle never paid for the com he bought from A. Sandford and that the alleged payment to Elston as Sandford’s ostensible agent was a collusive fabrication, we cannot see how the appellant can avoid the bar to his reoovery of it as creditor of Sandford, which Dayle pleads in the judgment of the quarterly court to the effect that Elston’s receipt was genuine proof of a valid payment.

Although the appeal to the Circuit Court operated as a merger of that judgment and is an original suit in that court as long as prosecuted, yet its voluntary discontinuance by the plaintiff left the judgment in as full force as it was before the appeal suspended its vitality.

Wherefore, the judgment dismissing Wallingford’s petition to subject that debt must be affirmed.

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Bluebook (online)

1 Ky. Op. 213, 1866 Ky. LEXIS 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallingford-v-dayle-kyctapp-1866.