Yarnall v. White

Court of Appeals of Kentucky

Yarnall v. White

4 Ky. Op. 291, 1871 Ky. LEXIS 197

DecidedJune 22, 1871

StatusPublished

This text of 4 Ky. Op. 291 (Yarnall v. White) 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

Yarnall v. White, 4 Ky. Op. 291, 1871 Ky. LEXIS 197 (Ky. Ct. App. 1871).

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Opinion

Opinion of the Court by

Judgui Hardin :

The érrors, if any exist, in the judgment in favor of the appellant against White, which is not appealed from, do not result [292]*292from anything in the pleadings or preparation of the case, which conld operate to estop the appellant from seeking in this court a reversal of the judgment, so far as it directs the payment of the claim of Wigglesworth against the appellant, out of the amount adjudged against White. The appellant resisted payment of the note for $800, because of alleged inability of C. Yarnall to convey the title in compliance with his bond, and his express stipulation that no part of the last payment fo'r which that note was given, should be made, until a warranty deed should be made in compliance with C. Yarnall’s bonds, which was not done, nor facts disclosed showing that it was in the power of the court to cause it to be done. The answer of appellant further set up in the guarnishee suit of , Hodges as creating a lien, or Us pendens as to $120 of the $500 debt in appellants hands before the assignment of the note to Wigglesworth. The assignment is not dated, and Wigglesworth has failed to allege or prove the date which would have shown whether or not the assignment and transfer of the note preceded the service or proof in the suit of Hodges; but he relied mainly on the alleged ground that he accepted the assignment of the note without knowledge of the pendency of the suit of Hodges, which does not appear to have been disposed of and may terminate in a judgment against the appellant.

Trimble, for appellant. Oleary & West, for appellee.

We are of the opinion that for both the reasons indicated, the court erred in adjudging, on the case as presented, that the claim of Wigglesworth should be paid; but on the return of the cause further preparation will be allowed.

Wherefore the judgment in favor of Wigglesworth, is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

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Opinion of the Court by

Judgui Hardin :

The érrors, if any exist, in the judgment in favor of the appellant against White, which is not appealed from, do not result [292]*292from anything in the pleadings or preparation of the case, which conld operate to estop the appellant from seeking in this court a reversal of the judgment, so far as it directs the payment of the claim of Wigglesworth against the appellant, out of the amount adjudged against White. The appellant resisted payment of the note for $800, because of alleged inability of C. Yarnall to convey the title in compliance with his bond, and his express stipulation that no part of the last payment fo'r which that note was given, should be made, until a warranty deed should be made in compliance with C. Yarnall’s bonds, which was not done, nor facts disclosed showing that it was in the power of the court to cause it to be done. The answer of appellant further set up in the guarnishee suit of , Hodges as creating a lien, or Us pendens as to $120 of the $500 debt in appellants hands before the assignment of the note to Wigglesworth. The assignment is not dated, and Wigglesworth has failed to allege or prove the date which would have shown whether or not the assignment and transfer of the note preceded the service or proof in the suit of Hodges; but he relied mainly on the alleged ground that he accepted the assignment of the note without knowledge of the pendency of the suit of Hodges, which does not appear to have been disposed of and may terminate in a judgment against the appellant.

Trimble, for appellant. Oleary & West, for appellee.

We are of the opinion that for both the reasons indicated, the court erred in adjudging, on the case as presented, that the claim of Wigglesworth should be paid; but on the return of the cause further preparation will be allowed.

Wherefore the judgment in favor of Wigglesworth, is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

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Bluebook (online)

4 Ky. Op. 291, 1871 Ky. LEXIS 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yarnall-v-white-kyctapp-1871.