Aikman v. South
| Decision Date | 31 October 1906 |
| Parties | AIKMAN v. SOUTH ET AL. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Breathitt County.
"Not to be officially reported."
Action by John Aikman against W. T. B. South and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.
Fleenor & Patton and Hazelrigg, Chenault & Hazelrigg, for appellant.
John W Ray, for appellees
O'REAR J.
This is an action for a new trial and to set aside a judgment rendered in a former suit pending in the Breathitt circuit court between the same parties concerning the title to a tract of land in that county. The petition in this case alleges that the plaintiff in this action, who was a defendant in the other action, had never been served with summons, and never appeared therein. The old suit was filed in January, 1888, against appellant and two other defendants. The defendants other than appellant appeared, and confessed a judgment in behalf of plaintiff. In February, 1888, the case was then ordered "filed away." At a subsequent term held in June, 1888, a judgment was entered against the defendant in that case, John Aikman, the appellant in this case, enjoining him from cutting any timber from or cultivating any of the land claimed in that suit by the plaintiffs. No steps were taken to execute the judgment although it was in the nature of an action of ejectment, for about five years after the judgment was rendered. Aikman claims that he had heard that there was such a suit pending against him, and asked the circuit court clerk, who was one of the plaintiffs in the action, and a deputy, who was the son of the clerk, whether there was such an action in the court, and was told by them that there was not; that, hearing the rumor repeated that such an action was pending, and that judgment had been rendered, he got an attorney to go with him, and they together made a similar inquiry of the clerk and were told that there was no such case on the docket; that the attorney asked to look through the papers; that he did so, and did not find anything upon the files of the court showing that such a suit was then or had been pending. Being thus assured that the rumors that he had heard were unfounded, he took no further steps in the matter until a rule was procured against him some five years later to show cause why he should not be punished for contempt in disobeying the judgment rendered in June, 1888. Thereupon he employed counsel and brought this suit to set aside that judgment, charging that it had been rendered against him by the fraud of the plaintiffs or of the officials of the court or that it was done by mistake, as he had never been summoned or appeared in the action. There is some evidence tending to show that appellant, Aikman, had been...
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Combs v. Deaton
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Department of Transp., State of Ill. v. Grawe, 4-82-0519
...jurisdiction of the cause. Instead, they must be construed in the context of the order in which they appear. (See generally Aikman v. South (Ky.1906), 97 S.W. 4.) It is likely that in the case at bar, the circuit court merely used these words to indicate that the cause was stricken from the......
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Van Arsdale v. Caswell
...appellee earnestly contends it merely continued indefinitely the prosecution of the warrant. Appellant chiefly relies on Aikman v. South, 97 S.W. 4, 29 Ky.Law Rep. 1201, and Phillips v. Arnett, 164 Ky. 426, 175 S.W. 660. In the first case Aikman had not been summoned in the original action,......