Kinnaird v. Harvey

• Decision Date: 25 May 1956
• Citation: 291 S.W.2d 11
• Parties: Harry B. KINNAIRD et al., Appellants, v. Paul HARVEY, Appellee, and Harry B. KINNAIRD, Appellant, v. George J. YARBER et al., Appellees, and Harry B. KININAIRD, Appellant, v. Paul HARVEY et al., Appellees.
• Court: Supreme Court of Kentucky

Page 11

291 S.W.2d 11

Harry B. KINNAIRD et al., Appellants, v.Paul HARVEY, Appellee, andHarry B. KINNAIRD, Appellant, v.George J. YARBER et al., Appellees, andHarry B. KININAIRD, Appellant, v.Paul HARVEY et al., Appellees.

Court of Appeals of Kentucky.

May 25, 1956.

Clay & Edwards, Thomas M. Edwards, Jr., Mt. Sterling, Roger Byron, Owingsville, for appellants.

Lewis A. White, Mt. Sterling, for appellees.

MONTGOMERY, Judge.

Harry B. Kinnaird filed an action against George J. Yarber and Paul Harvey in the Bath Circuit Court to recover damages alleged to have arisen from an automobile collision brought about by defendants' negligence on July 16, 1950.Personal service was had on the defendants on September 8, 1950.Harvey was present in the Bath Circuit Court at the October 1950 term on the day Yarber's attorney obtained a continuance for Yarber because of his anticipated absence in military service.At the February 1951 term of court, Yarber was granted another continuance.At the May 1951 term, the action was again continued as to Yarber, but the petition was taken as confessed as to Harvey.A jury was impaneled to determine the amount of damages to which Kinnaird was entitled.A verdict in his favor in the sum of $12,702 was returned and judgment was entered accordingly.

On December 13, 1954, Harvey filed an action to have the default judgment set aside, under Civil Code of Practice, Section 518(7), which was:

'The court in which a judgment has been rendered shall have power, after the expiration of the term, to vacate of modify it-- * * * For unavoidable casualty or misfortune, preventing the party from appearing or defending.'

The right to proceed under the Civil Code of Practice was not questioned.

The alleged casualty of misfortune was that when his codefendant, Yarber, was granted a continuance at the October 1950 term of court, he, Harvey, understood that the continuance applied to his case and that the case could not be tried against him alone.He further claimed that he had arranged with Yarber's father to be notified of Yarber's return so that he might be present in court and defend the action.This action was submitted on Harvey's motion for a summary judgment, supported by affidavits.Kinnaird filed counteraffidavits.The judgment was entered setting aside the original judgment of May 1951 against Hiarvey and granting him leave to file defensive pleadiings in the negligence suit.Kinnaird appeals, urging that under the facts the court abused its discretion in granting the new trial.Appeals also were taken in two related cases.

The question is whether Paul Harvey was prevented from appearing and defending the negligence action against him by an 'unavoidable causalty or misfortune', under Civil Code of Practice, Section 518(7), so as to entitle him to a new trial on the merits.

On the same day folowing the first continuance of the case as to Yarber, Harvey talked with Yarber's attorney about representing him in the matter.The attorney at that time declined to represent Harvey because of the possible conflict in interests of the two, but later accepted employment and brought the action for a new trial.

Harvey said that the first he knew of any default judgment was when the sheriff sought to levy an execution on December l118 1954.He is contradicted in this by appellant, who said that he advised Harvey in July 1952 of the judgment.This statement of appellant is not denied unless Harvey did so on cross-examination before the Chancellor, which testimony is not in the record.

The unavoidable casualty or misfortune that will authorize the vacating or setting aside of a judgment must be such as dould not have been avoided by the exercise of reasonable skill and diligence.Noe v. Davis, 171 Ky. 482, 188 S.W. 457;Byron v. Evans, 263 Ky. 49, 91 S.W.2d 548;Mason v. Lacy, 274 Ky. 21, 117 S.W.2d 1026;Louisville Joint Stock Land Bank v. McMurry, 278 Ky. 238, 128 S.W.2d 596.

Harvey gave little or no personal attention to the action entered against him.He filed no answer or responsive pleading to the petition seeking damages in...