Carr v. Brownfield
| Decision Date | 27 February 1953 |
| Citation | 255 S.W.2d 623 |
| Parties | CARR et al. v. BROWNFIELD. |
| Court | United States State Supreme Court — District of Kentucky |
Wallance & Hopson, Louisville, for appellants.
Leo J. Sandmann, Lousiville, for appellee.
The appeal is from a judgment setting aside a default judgment and granting a new trial to the appellee, Brownfield, in an action in which he was the defendant and the appellants, J. W. Carr and wife Ada Carr, were the plaintiffs.
Counsel for Brownfield has filed in this Court a pleading designated an 'answer' in which he prays that the appeal be dismissed on technical grounds relating to the bill of exceptions, and failure to file motion for an appeal. Counsel would be in better position to take advantage of his adversary's defections if he had complied with the rules himself. Questions of this nature, when the facts are shown by the record, should be raised by motion to dismiss the appeal or motion to strike the bill of exceptions, and not by answer. Section 757, Civil Code of Practice; Schmidt v. Mitchell, 95 Ky. 342, 25 S.W. 278; Bailey v. Louisville & N. R. Co., Ky., 44 S.W. 105; Wermeling v. Wermeling, 224 Ky. 107, 5 S.W.2d 893.
Evidence on the petition for a new trial was heard in open court, and the bill of exceptions was not approved within the time granted for that purpose, but since there is no motion to strike the bill, and since we have concluded the case should be affirmed on the merits, we waive the procedural defects in perfecting the appeal.
The original action in which the Carrs were plaintiffs and Brownfield was defendant was predicated on an alleged breach of contract by Brownfield in making certain repair to the Carrs' residence. It is stated in the petition that Brownfield was served with process in the first action on June 11, 1948. Within a few days thereafter the Jefferson circuit court adjourned for the summer and did not reconvene until September. After the service of process upon him, Brownfield communicated with his attorney. The attorney obtained and forwarded to Brownfield a copy of the petition and advised him to see if he could settle the suit with the Carrs. Brownfield thereupon attempted to placate the Carrs by correcting the defects in him workmanship and making the adjustments they desired to be made, the last work being done by Brownfield on October 1. In the meantime no defense had been made to the suit, and on the same day the last work was done by Brownfield the Carrs obtained a default judgment against...
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...to a perceived insufficiency of evidence. See Stoker, supra. See also McVey v. Berman, 836 S.W.2d 445 (Ky. App. 1992); Carr v. Brownfield, 255 S.W.2d 623 (Ky. 1953). However, the record reflects that Mitchell did not move for a directed verdict or a judgment notwithstanding the verdict. Ken......
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