Newton v. Carson

• Decision Date: 20 October 1887
• Citation: 5 S.W. 475
• Parties: NEWTON v. CARSON.
• Court: Kentucky Court of Appeals

5 S.W. 475

NEWTON v. CARSON.

Court of Appeals of Kentucky.

October 20, 1887

Appeal from circuit court, Warren county.

For opinion on former appeal, see 80 Ky. 309.

E. W Hines and Clark & Grider, for appellant.

James A. Mitchell, for appellee.

PRYOR C.J.

This case has been heretofore decided by this court, and an opinion rendered, under which the judgment below was reversed. That opinion must be taken and regarded as the law of this case, and upon a careful consideration of the record we find no material difference in the facts now before us and those in the record of the former appeal. In fact, the case is similar in every aspect; and without stopping to discuss the legal questions already determined, and by which the court below is to be guided, it is necessary to notice only the instructions given in the present case, and their application to the facts proven.

The fact that the appellant might have had a summons issued after the refusal of the appellee to confess judgment, so as to have prevented the running of the statute, does not bar his right of recovery. That question was before the court on the former appeal, and considered. This court held that if the agreement to confess judgment was made, as alleged and proven, by the appellant, the delay, or the time intervening between the promise and the time of the refusal, should not be computed in determining the question of the statutory bar. The only question for the jury to determine was, had such an agreement been made, and, if so, did the appellee, the surety, refuse to comply with this undertaking? We understand from the pleadings and the proof on the part of the defendant that he denies having made such an agreement. So the issue was directly made on this point, and is the only issue to be tried by the jury.

It is insisted by the appellee that if the agreement was made, that it was, in effect, that all the parties to the obligation should confess judgment, and, the others failing to enter their appearance, he was not compelled or required to confess judgment. This depends upon the character of the agreement. If the appellant, Newton, withheld proceedings at the instance of these obligors and on their promise to confess judgment, then it was their duty to comply, and the failure of one did not absolve the others; but, on the other hand, if it was agreed that if all did not appear, then it relieved the others from a compliance,...