Mason v. Mason

• Decision Date: 27 April 1868
• Citation: 68 Ky. 187
• Parties: Mason, & c., v. Mason, & c.
• Court: Kentucky Court of Appeals

68 Ky. 187

Mason, & c., v. Mason, & c.

Court of Appeals of Kentucky.

April 27, 1868

1. SECOND APPEAL IN SAME CASE BETWEEN SAME PARTIES.--All the errors and irregularities appearing in the original record and which could have been corrected by the first appeal must, on the second appeal, be regarded as settled and adjudicated, and can afford neither a cause for a review, or for a rehearing in the court below, nor for correction on the second appeal in the Court of Appeals.

2. The judgment of the circuit court having been affirmed by the Court of Appeals, and a petition for a new trial having been dismissed by the circuit court, on the appeal from the judgment of dismission, the Court of Appeals will only investigate such of the assigned causes for a rehearing as were not necessarily precluded by the former adjudication and affirmance.

3. After objecting to the filing of an answer, because verified before the clerk of a circuit court in Missouri, the plaintiffs offered to reply to it, and filed an amended petition, and also waived any objections to a subsequent answer of the same party. Any one of these acts should have been deemed a waiver of objections to the first answer; and especially, as the exception was not taken to it until the submission of the case for trial.

4. A reply to an answer which was not a cross-petition, and which did not set up a counter-claim or set-off, was properly rejected.

5. On a petition for a review or a rehearing, the evidence offered being entirely parol and cumulative to that presented in the original case, involving the credibility of the conflicting recollection, character, opportunity, & c., of those who testified--this was insufficient, in every aspect of the case, to authorize a review or rehearing.

6. A defense, of which the defendants must have had knowledge, if true, which was not relied on or presented in the first trial, cannot be made available on petition for a review or a rehearing--the alleged discovery of evidence to sustain such a defense will not authorize a re-trial.

7. The adverse parties to a judgment in favor of an infant, whose claim was prosecuted to judgment by a guardian ad litem, cannot object to the judgment against them because the summons was not served on the infant, who was a co-defendant with them in the original suit, and was made a defendant by them on their petition for a review and rehearing.

8. If it was technically erroneous to permit a cross-suit by an infant, by his guardian ad litem, which is by no means certain, after issue and judgment in his behalf, it is too late to object, because the infant was not served with a summons.

9. The suspension of execution on a judgment in favor of an infant until statutory guardian is appointed, did not injure the party against whom the judgment was rendered, as he could pay the money into court.

APPEAL FROM MADISON CIRCUIT COURT.

R. M. & WM. O. BRADLEY, For Appellants,

CITED--

3 J. J. Mar., 628; 2 B. Mon., 359.

6 B. Mon., 300; 8 B. Mon., 632.

Civil Code, secs. 573, 81, 579, 118, 30, 53, 153, 610, 369, 420.

Revised Statutes, 1 Stant., 321, sec. 1, art. 12, chap. 27; sec. 2, art. 3, chap. 17; 1 Stant., 249, secs. 3, 4, p. 248.

5 Dana, 197; Talbott vs. Todd.

2 Bibb, 33; Mahan vs. Jane.

2 Met., 380; Corbin, & c., vs. Commonwealth.

2 Duvall, 174; Fritz vs. Tudor.

9 Barb., 219.

5 Monroe, 413; Brown vs. Beauchamp.

Coke's Lit., 368; 2 Inst., 207, 208, 212, 213.

1 Saund., 301; 1 Hawk., chaps. 83, 84, 85.

2 Parsons on Contracts, 262, subdiv. 6, chap. 3.

2 B. Mon., 454, 457-8-9; Schaeffer vs. Gates.

Myers' Sup., 694, sec. 2; Ib., 137, 97.

2 Sill, 103; 3 Sev., 430.

Tomlin's Law Dic., title " Judgment. "

1 Met., 67; Raymond, & c., vs. Smith.

Stat. Law, 329.

1 J. J. Mar., 114; Commonwealth vs. Chambers.

Littell's S. C., 121; Luckett vs. Gwathmey.

2 Met., 291; Vertrees vs. Shean.

1 Bush, 335; Sandford vs. Farmers' Bank, & c.

Rev. Stat., sec. 1, art. 15, chap. 36, 1 Stant., 488.

2 Met., 197; Forrest vs. Phillips, & c.

2 Met., 433; Geoghegan, & c., vs. Ditto, & c.

12 B. Mon., 232; Isaacs vs. Gearheart.

2 Duvall, 81; Jones & Kelly vs. Commonwealth.

17 B. Mon., 20; Payne vs. Vandever.

3 Met., 542; Ashby vs. Woolfolk.

3 Dana, 9; Brooks' adm'r vs. Love.

2 Bush, 559; Commonwealth & Wakefield vs. Thompson, & c.

1 J. J. Mar., 377; Ballard vs. Davis.

7 Mon., 548; Durret vs. Whiting.

4 Mon., 118; Jarman vs. Davis.

4 Littell, 192-3; Farmer vs. Samuel.

4 Littell, 302; Terrill vs. Arnold.

3 Mar., 180; Griffith vs. Depew.

5 Mon., 249; 1 Mar., 106, 122.

1 J. J. Mar., 525-6; Honore vs. Colmesnil.

HUSTON & GOODLOE and ED. W. TURNER & W. B. SMITH, For Appellees,

CITED--

Hardin's R., 342, 351; 3 Mon., 121.

6 B. Mon., 340; 11 B. Mon., 589; 4 Mon., 146.

3 Mon., 400; Finley vs. Nancy Tyler.

1 Bibb, 455; McCracken's heirs vs. Finley.

1 Met., 18; Webber, & c., vs. Webber.

1 Met., 407; Alexander vs. Tevis.

4 J. J. Mar., 417, 500.

11 B. Mon., 220; Brunk vs. Means.

1 Met., 224; Downey vs. Wickliffe.

5 J. J. Mar., 610; 3 J. J. Mar., 390.

1 Met., 602; Brown vs. Bowman.

OPINION

WILLIAMS CHIEF JUSTICE:

John Mason, deceased, the father of these appellants, and the appellee, Wm. Mason, and grandfather to appellee, C. M. Todd in the year of 1856 conveyed his land, in several tracts, to appellants, upon condition, as asserted by appellees, that they would pay to Wm. Mason and Mrs. Todd, mother of appellee, C. M. Todd, an equal pro rata child's portion, to equalize them for said advancement at their father's death.

John Mason having died in the year 1864, and the appellants failing and refusing to carry out said contract, Madison Todd and wife conveyed their interest to their minor son, the appellee, Calvin M. Todd; and Wm. Ma??son brought suit in the Madison circuit court to compel the appellants' compliance with said contract. John Mason married subsequently to said contract and conveyance, and had three children by this last wife, to whom he left all his property possessed at his death.

After this litigation had been protracted for several years, and various amended pleadings had been filed, it was finally adjudicated at the March term, 1867, of said court, by which appellees recovered judgment against appellants, which the latter brought to this court by appeal, and which was affirmed at its December term, 1867.

After said affirmance, and on May 10, 1868, the appellants filed a petition for a new trial, to which a demurrer was sustained, because, as adjudged by the court, the newly-discovered evidence was incompetent, and if not, it was merely cumulative on the main issue, and not of that conclusive or permanent character required by law. Subsequently, by leave, the appellants filed an amended bill, containing fourteen specifications of causes for a vacation of the original and affirmed judgment. To this the appellees responded, either denying or avoiding the causes so assigned.

September 26, 1868, appellants filed another amended petition, averring that, since filing their previous amendment, they had, for the first time, discovered that they could prove that Wm. Mason had received from them eight hundred and fifty dollars, in full satisfaction for all claims in and to the estate of his father, John Mason, deceased; that they knew they had paid this money before the first suit was brought, but did not know they could prove it until recently; and that Mrs. Ballard, who was a defendant in the original suit, and one of the appellants against whom judgment went, was a married woman at the time of the pretended contract, and had so remained down to the present time, and was, because thereof, incapable of contracting, and she pleads her coverture in bar thereof. Also, that they could now prove that Wm. Mason had said that said original suit was not brought by him, or at his instance, though they had interrogated him in the original suit as to such being the fact, and he had denied it; also denied their charge that said suit was not prosecuted at his instance or by his consent; and that they had also, but three days previously, discovered that neither the original judgment, nor the orders of that day, had been signed by the presiding judge; hence it was a nullity. Also, that they have discovered, since the rendition of said original pretended judgment, that John Mason declared his intention to make appellants absolute deeds, and it was agreed that Todd and wife would receive their advancement in money at John Mason's death; and, lastly, that they have discovered that the last pretended judgment was rendered July 30, 1868, when the court adjourned the term June 24, 1868; hence it was a nullity; ?? thus making twenty-one specifications. To this amended petition appellees filed answers, denying and avoiding each specific cause therein set out.

September 10, 1868, appellee, Mason, filed separate answers to the first amended petition, they being sworn to by him before the clerk of the circuit court of Randolph county, State of Missouri, where he then lived. To these answers appellants offered a reply; at the same time they filed the last amended petition. The court rejected the reply, but permitted the amended petition, to which exceptions were entered.

September 29, 1868, the appellees filed separate answers to said second amended petition--that of Wm. Mason being verified by his attorneys.

September 30, 1868, appellants excepted to the answer of Wm. Mason to their first amended petition, and to which their reply had been rejected, because it was verified before an officer not authorized by our laws; and on the same day waived any objection to his answer to their second amended petition because it was...