De Long v. Owsley's Ex'x

• Decision Date: 04 June 1948
• Citation: 308 Ky. 128,213 S.W.2d 806
• Parties: DE LONG v. OWSLEY'S EX'X.
• Court: Kentucky Court of Appeals

213 S.W.2d 806

308 Ky. 128

DE LONG v. OWSLEY'S EX'X.

Court of Appeals of Kentucky

June 4, 1948

Rehearing Denied Oct. 26, 1948.

Appeal from Circuit Court, Common Pleas Branch, Fourth Division Jefferson County; Eugene Hubbard, Judge.

Action by Mrs. J. S. Owsley, as executrix of estate of J. S. Owsley deceased, against Bessie Cecil Anheier DeLong on two notes executed by defendant to plaintiff's decedent. From a judgment for plaintiff based on a directed verdict, defendant appeals.

Reversed.

John H. Chandler and Hal Williams, both of Louisville, for appellant.

James F. Clay, of Danville, and Dodd & Dodd, of Louisville, for appellee.

SIMS Chief Justice.

Appellee Mrs. J. S. Owsley, as executrix of the estate of her deceased husband, J. S. Owsley, filed this action against appellant Mrs. Bessie Cecil Anheier DeLong, on two promissory notes the latter executed to the former's decedent on June 18, 1929, one for the sum of $515 and the other for the sum of $530, due respectively in one and two years after date. The answer admitted the execution of the notes but pleaded failure of consideration and the court put the burden of proof on appellant.

At the conclusion of appellant's evidence a verdict was directed in favor of appellee and in seeking to reverse the judgment entered thereon it is insisted that the court erred: (a) in failing to permit appellant to file an amended answer; (b) in excluding certain competent evidence offered by her.

This action was filed on April 3, 1945, and was continued from time to time until it was tried on Oct. 14, 1946. When the case was called for trial on that day appellant offered to file an amended answer, the first paragraph of which pleaded as a complete defense and bar to the action appellee's failure to list the notes for taxation, KRS 132.300, and the second paragraph pleaded laches. Appellee's counsel objected to the filing of this amendment on the ground that appellant's counsel had agreed with them that if granted a continuance on Sept. 18th, he would not plead appellee's failure to list the notes for taxation as a bar to her action. The court refused to allow the amendment to be filed, but it was made a part of the record as having been tendered.

In support of the motion for a new trial appellant's counsel filed his affidavit wherein he stated he offered to make such an agreement with appellee's counsel but one of them informed him it was his duty to make any defense he could and it was not desired by appellee that he waive any defense he might have. This affidavit was controverted by appellee's counsel. However, we are not concerned with which of the attorneys is correct relative to this agreement, since we conclude that appellant's attorney was without authority to enter into it.

An attorney ordinarily has authority to make agreements and stipulations relative to procedural matters and as to how the trial may be conducted in litigation entrusted to him. 5 Am.Jur. § 92, p. 315; Conrad's Ex'r v. Conrad, 156 Ky. 231, 160 S.W. 937; World Fire & Marine Ins. Co. v. Tapp, 286 Ky. 650, 151 S.W.2d 428. But he is without authority to compromise a case or to surrender a substantial right of a client unless special authority from his client has been granted him to do so. 5 Am.Jur. § 92, p. 315; Shropshire v. Shropshire, 282 Ky. 211, 138 S.W.2d 340. It therefore follows that appellant's attorney was without authority to agree to waive the pleading of KRS 132.300 as a complete bar to this action, unless his client expressly consented thereto. It is not contended that appellant gave her attorney any authority to make such an agreement.

Much of appellee's brief is devoted to the proposition that under § 134 of the Civil Code of Practice the trial court has a broad discretion in permitting amendments to be filed in the furtherance of justice and we will not interfere with his ruling unless it clearly appears that he has abused his discretion, citing such authorities as Callahan v. Dine's Furniture House, 260 Ky. 631, 86 S.W.2d 530; Central Trust Co. of Owensboro v. Moffitt, 294 Ky. 103, 171 S.W.2d 21. It can hardly be said the trial court acted in furtherance of justice when he refused to allow appellant to file this amendment pleading KRS 132.300, which is a complete bar to this action, and his failure to do so was an abuse of his judicial discretion. Furthermore, the statute is primarily one to enforce the payment of taxes and as the holder of notes or bonds can avoid its consequences by listing them and paying the tax thereon at any time, Kennedy v. Kennedy, 197 Ky. 784, 248 S.W. 182; Miller v. Tennessee Chemical Co., 251 Ky. 30, 64 S.W.2d 437, the courts should rigorously enforce it.

Appellee insists that it was incumbent upon appellant to expressly aver in the amendment that appellee was a resident of this...