Central Acceptance Corp. v. Rachal

• Decision Date: 16 June 1936
• Citation: 95 S.W.2d 777,264 Ky. 849
• Parties: CENTRAL ACCEPTANCE CORPORATION v. RACHAL.
• Court: Kentucky Court of Appeals

95 S.W.2d 777

264 Ky. 849

CENTRAL ACCEPTANCE CORPORATION v. RACHAL.

Court of Appeals of Kentucky

June 16, 1936

Appeal from Circuit Court, Boone County.

Suit by the Central Acceptance Corporation against Kathryn Hicks Rachal, wherein defendant filed a counterclaim, and wherein plaintiff filed a petition to vacate a judgment for defendant on her counterclaim and for a new trial. From the judgment for defendant on her counterclaim and from an order sustaining defendant's demurrer to its petition plaintiff appeals.

Reversed and remanded.

Rogers & Rogers, of Covington, and D. E. Castleman, of Erlanger, for appellant.

Vest &amp Vest, of Walton, and B. H. Riley, of Burlington, for appellee.

RATLIFF Justice.

Appellant plaintiff below, brought this suit in the Boone circuit court to recover of appellee, defendant below, the sum of $319.20 representing the unpaid balance of a series of notes executed by defendant representing deferred payments of the purchase price of an automobile, and to foreclose a mortgage on the automobile, which, it is alleged, defendant executed to secure the payment of the notes. We will refer to the parties as plaintiff and defendant according to their respective status in the lower court.

Plaintiff alleged, in substance, that on the 11th day of July, 1931, the defendant purchased an automobile, an Oldsmobile coupé, of Nat Rogers, doing business as "Covington Oldsmobile Company," for the price of $1,052, and paid the sum of $505 of the purchase price, leaving a balance of $547.20 due, for which sum she signed a note payable to herself in equal installments of $45.60 each, the first to mature one month after date thereof, and each of the succeeding installments to be paid on the same day of each succeeding month thereafter until the total sum was paid. And further alleged that to secure the payment of the notes, defendant executed and delivered to the Covington Oldsmobile Company a mortgage on the automobile, which mortgage was duly signed and acknowledged before a proper officer and filed in the office of the Kenton county clerk; that on July 16, 1931, for a valuable consideration, the Covington Oldsmobile Company assigned to plaintiff the notes and mortgage, and it is now the holder and owner of same; that four of the notes had been paid, leaving a balance due in the sum of $319.20; and prayed to recover of defendant that sum, and that it be adjudged a lien on the automobile to secure the payment of its debt, interest, and costs.

Defendant filed her answer and counterclaim admitting the purchase of the automobile, but denying that she signed, executed, or delivered to Nat Rogers the notes and mortgage mentioned in the petition, and denying that such notes and mortgage were assigned to plaintiff or that it was the owner of same. She admitted that she made payment of two of the notes, but averred such payments were made by her under duress and fraud.

For her counterclaim and cause of action against the plaintiff, defendant pleaded that at the time and before the filing of this action by plaintiff against her, its officers, agents, employees, and attorneys knew from actual notice from the notary public purporting to have taken the alleged acknowledgment to the alleged mortgage, that she had not signed and/or acknowledged the mortgage sued on and that same was void and of no effect in so far as she was concerned, and the plaintiff filed its action wantonly, maliciously, without probable cause or any right whatever so to do, and for the purpose of annoying, harassing, embarrassing, and humiliating the defendant, and asked to recover, for loss of time and expenses incident to defending the suit, the sum of $200; for attorney's fees, $500; and for mental anguish, humiliation, and mortification, $5,000.

Plaintiff filed its demurrer to the answer and counterclaim, which demurrer the court overruled. By subsequent pleadings, issues were made and the cause transferred to the ordinary docket. A trial was had before a jury resulting in a verdict in favor of the defendant on her counterclaim in the sum of $500 and an additional sum of $200 for attorney's fees, and the court entered judgment on the verdict for the sum of $700. Plaintiff filed its motion and grounds for a new trial which were overruled, and it brings this appeal to reverse that judgment.

At the following term of the court, plaintiff filed its petition to vacate the judgment and for a new trial upon the grounds of newly discovered evidence, pursuant to section 518 of the Civil Code of Practice. In addition to other necessary allegations for a new trial, it alleged that the newly discovered evidence was that John A. Rankin would state that he was present when the papers in question were signed by the defendant, and he saw her sign and deliver them to James K Hicks, her brother, the agent of the Covington Oldsmobile...