Pinnacle Motor Co. v. Simpson

• Decision Date: 22 October 1926
• Citation: 216 Ky. 184,287 S.W. 566
• Parties: PINNACLE MOTOR CO. v. SIMPSON.
• Court: Kentucky Court of Appeals

287 S.W. 566

216 Ky. 184

PINNACLE MOTOR CO. v. SIMPSON.

Court of Appeals of Kentucky.

October 22, 1926

Appeal from Circuit Court, Harlan County.

Action by A. B. Simpson against the Pinnacle Motor Company. Default judgment for plaintiff, and defendant moves for an appeal. Motion for appeal granted, and judgment affirmed.

James H. Jeffries, of Pineville, and W. E. Cabell, of Middlesboro for appellant.

Hall Lee & Snyder, of Harlan, for appellee.

John P Cusick, of Frankfort, warning order attorney.

DIETZMAN J.

This case is before us on a motion for an appeal. Although we are of opinion that the judgment of the lower court is correct, yet, as this record involves questions of practice of interest to the bar, we have decided to grant the motion for an appeal in order that a written opinion may be delivered.

The appellee brought suit in the Harlan circuit court against the appellant, a corporation, for $260 on a contractual claim. The summons was duly served in Harlan county on an agent of the appellant, whom it is not denied was the proper agent for service if the Harlan circuit court had jurisdiction of this action. At the succeeding February term of court, appellant filed a motion to quash the return on the summons, and in support of that motion filed an affidavit setting up the fact that the contractual obligation sued on was neither made in nor was to be performed in Harlan county, that the appellant had never had any office whatever in Harlan county, and never had any agent of any kind residing in that county, and that the service of the summons in this case was had on its agent at a time when he was but temporarily in Harlan county. Appellee filed a counter affidavit. The court overruled the motion to quash, and gave the appellant to the rule day in the March term to file its answer. The appellant failed to file its answer within the time granted, and on a later day in that term of the court a default judgment was entered against the appellant. On the first day of the May term appellant filed a motion to set aside the default judgment and tendered an answer which was simply a traverse of the plaintiff's claim. In support of the motion to set aside the default judgment, appellant filed certain affidavits, the substance of which was that appellant's main counsel who resided at Pineville had employed local counsel in Harlan county to file the answer and had intrusted him with that duty, that the local counsel thought he had an agreement with appellee's counsel about the filing of this answer, and that he had neglected to file the answer because of the reliance on the agreement he thought he had. The court overruled the motion to set aside the default judgment, and appellant moves for an appeal.

The court did properly in overruling the motion to set aside the default judgment: First, because, the judgment having become final at the preceding term, the court was without power to set it aside on motion on the grounds here asserted at a succeeding term. This could only be done by a proceeding filed under section 518 et seq. of the Code. Wobble v Finch, 110 S.W. 808, 33 Ky. Law Rep. 588. Secondly, there was no unavoidable casualty or misfortune shown here, as comes within the meaning of the Code, authorizing a new trial on either of those grounds. Appellant's affidavits do not even go to the extent that its counsel had an agreement with appellee's counsel, but only that they thought they had an agreement. No excuse is shown for their mistake in this...