Kamman v. Otto

• Decision Date: 25 March 1896
• Citation: 34 S.W. 1070
• Parties: KAMMAN et al. v. OTTO.
• Court: Kentucky Court of Appeals

34 S.W. 1070

KAMMAN et al. v. OTTO.

Court of Appeals of Kentucky.

March 25, 1896

Appeal from circuit court, Jefferson county.

"Not to be officially reported."

Action by David Otto against J. H. Kamman and Callotta Meyer. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Blain &amp Kinkead, for appellants.

GUFFY J.

This action was instituted by the appellee, David Otto, in the Jefferson circuit court, common pleas division, against J. H Kamman and Callotta Meyer, to recover judgment on a note for $400. Judgment was rendered for the sum claimed in due time no defense having been made. On the 1st of March, 1894 execution was issued, and on the 29th it was levied on property. On the 5th of March the defendants offered to file an affidavit and their separate answers, and moved the court to set aside the judgment. The affidavits were finally filed, and answers tendered, but the court, upon final hearing, overruled the motion to set aside the judgment; and appellants prayed an appeal, and superseded the judgment. The appellee filed this transcript, and asks that the judgment be affirmed.

The substance of the affidavits filed by appellants is that appellee agreed with the principal, Kamman, to extend the time for the payment of the note sued on, and Kamman to pay interest, the time being one year from about the time this suit was brought. The affidavits of appellants are controverted, and, to some extent, disproved, by appellee. The substance of Kamman's answer is pleading the aforesaid agreement; and that of Meyer is claiming that she was surety, and that the agreement released her. The excuse for not filing an answer at the proper time is that they and their attorney did not observe that the action had been set at rules, or was at any time upon the trial docket of the court. The attorney for appellants shows by his affidavit that he was employed, and would have filed the answers but for the fact that he had overlooked the case on the docket, and was not aware that judgment had been rendered until about the 3d of March, 1894. If it be conceded that the steps taken to obtain a new trial are a compliance with the law, yet the reasons or excuses offered for the neglect or failure to answer are not sufficient to authorize the relief asked for. There is no claim made in the answers that the note was not just; the only claim being that appellee had agreed to an extension for which he...