Ringo, &C. v. New Farmers' Bank's Trustee
| Decision Date | 16 March 1897 |
| Citation | 101 Ky. 91 |
| Parties | Ringo, &c. v. New Farmers' Bank's Trustee. |
| Court | Kentucky Court of Appeals |
APPEAL FROM MONTGOMERY CIRCUIT COURT.
O'REAR AND BIGSTAFF FOR APPELLANTS.
J. J. CORNELISON AND R. A. MITCHELL OF COUNSEL ON SAME SIDE.
STONE AND SUDDUTH FOR APPELLEE.
The appellee, the Columbia Finance & Trust Co., as trustee of the New Farmers' Bank, brought an action at law against the appellants, Ringo & Mitchell, on three joint notes executed by them, and upon an overdraft, caused by checks drawn by appellants on said bank. The process was returnable to the January term, 1894, when appellants filed a demurrer to each paragraph of the petition.
It is insisted that the demurrer to the fifth paragraph should have been sustained. It avers that Mitchell & Ringo "drew checks on said New Farmers' Bank beyond the amount they had on deposit for the sum of $63.97, which checks were paid, whereby said Mitchell & Ringo became indebted to the New Farmers' Bank in the sum of $63.97 for said overdraft, which sum is due and remains unpaid."
The objection urged is that it is not stated that the over-draft was occasioned by the joint check or checks of appellants, nor that there was a co-partnership between them; and, as pleadings are to be construed most strongly against the pleader, it is, therefore, to be assumed from the pleadings that the overdraft was created by individual checks. But in our judgment the maxim fortius contra proferentem is not to be so extended as to wrest an averment from the ordinary meaning and acceptation of the language used, and we think the averment that the appellants drew checks beyond the amount they had on deposit clearly signifies that the checks and the deposit were executed and belonged to them jointly.
On January 19, 1894, in the term to which the process was returnable, appellants filed their answer. On February 1 the attorneys who filed it were required and ordered to withdraw it on account of slanderous and defamatory matter contained in it, the order providing: "The defendants may replead herein, leaving out entirely said slanderous and defamatory matter." On the following day appellants tendered and moved to file an answer, and the motion was submitted. On February 5th they renewed their motion to file the answer, which had been tendered. On February 9th, on motion of appellee, the action was dismissed without prejudice as to appellant Mitchell. On February 16th judgment was entered in favor of appellee, the judgment reciting that the answer filed January 19th had been stricken from the record. The judgment does not mention the pending motion to file answer. At the April term, April 10th, the appellants moved to set aside the judgment upon the ground of clerical misprision as having been entered before the action regularly stood for trial. (Civil Code, section 519.)
This motion was sustained April 13th, and on the same day the appellee moved to set aside the order setting aside the judgment. On the same day an order was entered rejecting the answer tendered February 2d, and leave was given to amend or file another answer on or before the 8th day of the term. On April 20th Ringo moved to file an amended answer, set-off and counter-claim, and Mitchell moved to file a petition to be made party, and an answer and set-off. The trial court overruled both motions to file, and on April 28th set aside the order by which the judgment of February 16th had been set aside, and directed that that judgment "is now permitted to remain in full force and effect in all respects as though the motion of defendant H. H. Ringo, to set aside the same had not been granted at the present term of this court."
The first question presented is whether the trial...
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