Houston v. Kidwell

• Decision Date: 20 September 1890
• Citation: 14 S.W. 377
• Parties: HOUSTON v. KIDWELL.
• Court: Kentucky Court of Appeals

14 S.W. 377

HOUSTON v. KIDWELL.

Court of Appeals of Kentucky.

September 20, 1890

Appeal from circuit court, Pendleton county.

"Not to be officially reported."

J. W Menzies and C. H. Lee, for appellant.

L. T Applegate, for appellee.

BENNETT J.

In March, 1887, the appellant brought his action to set aside a verdict and judgment that had been rendered at the October term, 1886, and grant him a new trial. At the April term 1887, this petition was dismissed absolutely. Thereafter, at the November term, 1887, the appellant filed an amended petition alleging that since the filing of his petition he had discovered additional evidence. Thereafter, at the --- term, 1888, this amended petition was dismissed. From this judgment the appellant has appealed. The grounds alleged in the petition and amended petition for a new trial are substantially the same, and the proof offered in each appertains to that ground, the latter being merely cumulative. There being no appeal from the judgment dismissing the petition, we cannot review that judgment. We must regard it as correct. The evidence offered with the amended petition is merely cumulative to the matter set up in the petition, upon which there had been a judgment of the court. Now, it is well settled that evidence, merely cumulative, is not sufficient to authorize a new trial because that fact has, already, been investigated, and judgment pronounced thereon, and to allow either party to retry the same issue upon evidence appertaining to it, which he says that he has discovered since the trial, would be to keep up interminable litigation.

Besides the petition, to which the amendment was filed, was not before the court. It had lost its day in court by reason of the judgment. Unlike a pleading that is demurred out of court, and which the law holds in court during the term for the purpose of amendment, the judgment was final as to all matters contained in the petition, or that should have been contained therein, and the petition was no longer in court for any purpose whatever, except for that of an appeal. Therefore, as an amendment to a pleading presupposes that there is a pleading in court that may be amended, and as there was no pleading in court, the amendment could not be allowed as an amendment; but, although styled "an amended petition," should it be treated as a petition, and allowed to proceed as such? We think not, for the reason that the...