Mayo v. Emery
| Decision Date | 19 May 1898 |
| Citation | 45 S.W. 1048,103 Ky. 637 |
| Parties | MAYO v. EMERY et al. [1] |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Rowan county.
"To be officially reported."
Action by John W. Mayo against Lewis Emery and others. Judgment for defendants, and plaintiff appeals. Affirmed.
Reuben Gudgell & Son, for appellant.
Z. T Young and B. F. Day, for appellees.
The appellant, Mayo, was plaintiff in the court below; and, upon the trial of the case upon its merits, his petition was dismissed. After the judgment was rendered, and before this appeal was prosecuted and the transcript of the record made the pleadings and all the depositions taken by the appellees were lost or stolen. At any rate, they could not be found. The case was not pending in the court below, as the final judgment had been rendered; but, on motion of the appellant a commissioner was appointed, under section 4, c. 72, Gen St. The commissioner fixed a time and place for taking the evidence of such witnesses as might be introduced, as required under section 5, Id. Before taking the evidence, the affidavit which the law required was filed, in which it was stated that there was no attested copy of the parts of the record which were lost. The commissioner took one deposition, and filed it with the clerk of the court. The court entered an order reciting that it was shown to the satisfaction of the court that the papers were not properly substituted; that the plaintiff's attorney had the proof and exhibits taken; that the defendant and his attorney did not have an opportunity to examine the evidence. Therefore it was ordered that the plaintiff's attorney return the papers to the commissioner on or before a date named. The court further ordered that the commissioner proceed to take additional testimony on the question of the substitution of other papers for those which were lost. So far as this record shows, the commissioner failed to take any additional testimony under the order of the court, and the court has never made any order substituting another record in lieu of the parts of the record which were lost. This record does not contain a transcript of the parts of the record which were lost. It appears to be simply a transcript of the deposition which the commissioner took under the order of the court, together with certain parts of the record which were not lost.
The statute provides that the evidence which the commissioner takes shall be in writing, and shall be legal evidence, and shall be returned to the clerk of the court, and safely kept by him. The statute does not provide that the evidence which the commissioner is required to take shall be used in place of the parts of the record which are lost. The testimony...
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Prewitt v. Wilborn
... ... 205, 148 S.W. 32; Heard v ... Cherry, 150 Ky. 319, 150 S.W. 361; Trosper Coal Co ... v. Tway Mining Co., 183 Ky. 354, 209 S.W. 58; Mayo ... v. Emery, 103 Ky. 637, 45 S.W. 1048, 20 Ky. Law Rep ... 638; Com. v. Keger, 1 Duv. 240; Jones' ... Adm'r v. Jones, 60 S.W. 488, 22 Ky ... ...
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Hoskins Heirs v. Boggs
...has not had a chance to, address its' authenticity and trustworthiness, KRS 422.200, 422.240, and 422.250, see else Mayo v. Emery, 103 Ky. 637, 45 S.W. 1048 (1898), wednote, for the context of our consideration of the issues relating to the trial coprt's summary judifitthit, that when alleg......
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The State v. Cantrell
... ... supply a lost or destroyed document in the case ... [Dougherty v. Ringo, 7 Ky. L. 360; Mayo v ... Emery, 103 Ky. 637, 45 S.W. 1048.] Therefore, again we ... say both the reason of the thing and the ruled cases ... (Fellheimer v. Eagle, ... ...
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Morrison v. Price
...is instituted to supply the lost record, the proof taken by the commissioner may not be read as a substituted record. In Mayo v. Emery, 103 Ky. 640, 45 S.W. 1048, the court said: "The statute provides that the which the commissioner takes shall be in writing, and shall be legal evidence, an......