Daniel v. Morgan
| Decision Date | 21 December 1951 |
| Citation | 244 S.W.2d 752 |
| Parties | DANIEL v. MORGAN et al. |
| Court | United States State Supreme Court — District of Kentucky |
Lawrence S. Grauman, Charles Leibson, Louisville, for appellant.
Hubert T. Willis, Louisville, for appellees.
Appellant, Lillian Daniel, filed suit on December 28, 1949 against appellees, Virgil D. Morgan and Arthur R. Morgan, partners doing business as V. D. Morgan Van Service and Storage Company, and Lon Nunn, an employee of the company, to recover damages for personal injuries sustained by her.
Summons issued against the defendants and the sheriff's return shows that each of the defendant was served in January 1950. After expiration of more than twenty days from the date of the service of summons the case was set at rules. No appearance having been made by any of defendants, the case was remanded.
On February 6 the case was again set at rules and called on February 10, 1950 at which time motion was filed for a judgment pro confesso. The motion was passed for hearing until February 17, 1950 at which time it was sustained and judgment pro confesso was entered. The cause was then passed until February 25, 1950 for the purpose of assessing damages. On that date, the court, after hearing testimony, entered judgment in the sum of $5,000 in the favor of appellant.
Nothing further was done about the judgment until May 1950 when execution issued with return of 'no property found.' On May 18, 1950 appellant filed an amended and supplemental petition in equity seeking a bill of discovery against the defendants.
Defendants say that this was the first information they had that judgment had been obtained. They then filed this action seeking to vacate the judgment. Demurrer was filed to this petition which was overruled. Petitioner then introduced proof in support of their petition. Upon calling the third witness the court announced: Counsel for appellant took exception to this ruling and insisted that he wanted to proceed in the regular manner with the opportunity to introduce proof in opposition to the petition to vacate.
Order was then entered vacating and setting aside the judgment. Defendant appeals insisting: (1) that the court erred in overruling demurrer to the petition to vacate the judgment; (2) the proof introduced by plaintiffs did not warrant the court setting aside the judgment; (3) the court erred in peremptorily answering he was going to set aside the default judgment without giving defendant an opportunity to introduce proof in support of the petition to set aside the default judgment.
We deem it unnecessary to enter into an elaborate, separate discussion of each of the grounds advanced. We shall treat them more or less together as one overall proposition, keeping in mind the fundamental rule that the lower court has a large discretion in the matter of granting new trials and that this court will not interfere unless there has been an abuse of that discretion and that there is less inclination to set aside a judgment granting a new trial than one refusing it. In Cherry Bros. v. Christian County, 146 Ky. 330, 142 S.W. 726, 727, we said: ...
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