Machen v. Bernheim

• Decision Date: 17 May 1906
• Parties: MACHEN v. BERNHEIM et al.
• Court: Kentucky Court of Appeals

93 S.W. 621

MACHEN v. BERNHEIM et al.

Court of Appeals of Kentucky.

May 17, 1906

Appeal from Circuit Court, McCracken County.

"Not to be officially reported."

Petition by Francis Machen against I. W. Bernheim and others for a new trial. Petition denied, and petitioner appeals. Affirmed.

J. W Head, for appellant.

Crice &amp Ross, for appellees.

PAYNTER J.

By the petition filed in this case the appellant sought a new trial. The judgment of which complaint was made was rendered at the November term, 1902, of the McCracken circuit court, and under it certain real property was ordered sold to satisfy the claims against it. I. W. Bernheim had obtained a judgment for $126.50, with interest, and a judgment had been obtained for street improvements. Separate actions were pending for these claims, but were consolidated, and the judgment sought to be set aside was rendered in the consolidated actions. The plaintiff fails to manifest that she had any defense to either of the actions. No grounds for setting aside the judgment are sufficiently alleged in the petition as amended. The sale was made under the judgment, Weil became the purchaser, and the sale was confirmed.

One of the grounds for setting aside the judgment seems to be that "the bond is defective on its face." By this the plaintiff means the bond executed for the purchase money. That is no ground for setting aside the judgment. Although it was defective, it seems to have been paid. The validity of the sale might have been questioned for the reason suggested but it would not affect the validity of the judgment, even if the bond had been defective.

It is further averred that the proceedings were against "a person laboring under unavitable casualty or misfortune which prevented her from appearing or defending." The court does not quite understand what the pleader means when it is said that the plaintiff "was laboring under unavitable casualty or misfortune." There is no averment contained in the pleading that the appellant had any defense to the claim in suit.

In the amended petition it was stated that fraud was practiced by the successful party; but that is a mere conclusion of the pleader, because there is no specification showing wherein any fraud was practiced.

It is also averred in the amended petition that the proceedings were against "a person under disability." There is no averment of any fact showing that appellant was laboring...