Harrison, &C., v. Lebanon Water-Works

• Decision Date: 17 February 1891
• Citation: 91 Ky. 255
• Parties: Harrison, &c., v. Lebanon Water-works.
• Court: Kentucky Court of Appeals

Page 255

91 Ky. 255

Harrison, &c., v. Lebanon Water-works.

Court of Appeals of Kentucky.

February 17, 1891.

APPEAL FROM MARION CIRCUIT COURT.

W. B. HARRISON FOR APPELLANTS.

SAMUEL AVRITT FOR APPELLEE.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

This action was brought against appellees, the trustees of Lebanon and the Lebanon Water-works Company, by appellant Lanham, with whom were united as plaintiffs, Cambron, Ballard and Edmunds, but they subsequently withdrew from the action.

November 28, 1888, there was filed in court an amended petition, in which it was stated: "Lanham and W. B. Harrison now unite in amending the petition; the said Harrison is hereby made a plaintiff, and adopts the statements in the original petition and in the amended petition filed in this case within the last five days."

December 10, appellees made a motion that the plaintiffs verify their petition, and thereupon, as recited in the order, "came W. B. Harrison, one of the plaintiffs, and verified said petition."

December 11, a motion was made, based on an affidavit required in such case, for a rule against appellant Lanham to verify the petition and amended petition; and he having refused to obey the rule issued on that motion, an order of court was made December 12, in substance, that said pleadings be treated in regard to him as if they had not been filed, to which Lanham excepted; and December 13 the action was, by order of court, continued. But December 14 an entry was made showing that W. B. Harrison, styled plaintiff, produced his bill of exception which was signed, enrolled and ordered to be filed.

At the March term, 1889, was entered the following: "The court, being of the opinion that the order made at the last term of this court as to the plaintiff Lanham, finally disposed of and put the case out of court, refused to rule the defendants to answer, and orders and adjudges that there is no case in court. To which ruling of the court the said Harrison excepts, and prays an appeal," &c.

The statement filed with the transcript shows both Lanham and Harrison as appellants; but the first question to be considered is whether an appeal will lie in behalf of either.

By section 368, Civil Code, a judgment is defined "a final determination of a right of a party in an action or proceeding;" and section 513 provides that "a judgment rendered in the circuit court may be reversed, vacated or modified either by it or by the Court of Appeals."

Section 763 is as follows: "Neither a void judgment, nor a judgment against a defendant who shall have been only constructively summoned, and shall not have appeared in the action; nor any judgment which can be set aside or modified by the court which rendered it, upon motion made after the term during which it was rendered, shall be reversed or modified by the Court of Appeals, until a motion to set aside or modify the judgment shall have been made in the inferior court and overruled."

A final order or judgment from which an appeal will lie in this court, either terminates the action itself, or operates to divest some right in such manner as to put it out of the power of the court making the order, after the expiration of the term, to place the parties in their original condition. (M. & L. R. Co. v. Punnett, 18 B. M., 48; Turner v. Browder, 15 B. M., 826; Applegate v. Applegate, 4 Met., 236; Helm v. Short, 7 Bush, 625.)

By subsection 4, section 117, it is provided that on motion of a party who files his affidavit, stating his belief that an adverse party whose pleading has been verified by a person other than himself, knows that a statement thereof in the affidavit mentioned is untrue, and that the motion is not made for delay, the court, if such statement be material, shall require such adverse party to verify the pleading; and if he fail to do so within a reasonable...