Whaley v. Vanhook

43 Ky. 271, 4 B. Mon. 271, 1843 Ky. LEXIS 135

• Court: Court of Appeals of Kentucky
• Decided: September 27, 1843
• Status: Published

Opinions

.Judge Beech

delivered the opinion of the Court.

The demurrer to the declaration, we think, was properly overruled; for although the first count may be somewhat defective in setting out the assignment by Whaley to the plaintiff, yet the second count is good, and upon that the plaintiff, upon proof of having used the requisite diligence, is entitled to recover.

It appears that suit was instituted upon the assigned note, at the first term of the Court after the assignment, and judgment obtained at the same term, execution thereon issued in due time, and returned, “no property.” That the suit was set for trial upon the docket, on the 11th day of the month, but judgment not entered till the 22d, the last day of the term, is relied upon as evidence of failing to use due diligence.

Why judgment was not rendered on the 11th, or at an earlier day than the 22d, does not appear. But in the absence of testimony as to the cause of the delay to enter the judgment, we are not inclined to regard it as indicative of negligence on the part of the assignee or his counsel. Such diligence, we think, was used by the assignee as to render the assignor responsible upon his assignment. The note purports to have been given in consideration of the purchase of land, but whether a lien upon the land was retained for its payment does not appear, and in the absence of any testimony upon the subject, and as the assignor was not the payee or obligee,, we are of opinion that the mere fact that the consideration of the note was a sale of land, ought not to affect the direct liability of the assignor' to the plaintiff.

Wherefore, the judgment is affirmed.