Prater v. Campbell

• Citation: 110 Ky. 23
• Parties: Prater v. Campbell.
• Decision Date: 15 February 1901
• Court: Court of Appeals of Kentucky

110 Ky. 23

Prater v. Campbell.

Court of Appeals of Kentucky.

February 15, 1901.

APPEAL FROM PIKE CIRCUIT COURT.

JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. REVERSED.

JAMES GOBLE, ATTORNEY FOR APPELLANT.

OPINION OF THE COURT BY JUDGE O'REAR — REVERSING.

At the March term, 1897, of the Pike Circuit Court, appellant Prater, recovered judgment by default against appellee, Campbell, on two notes sued on, aggregating $300. After the adjournment of the court, Campbell filed a suit in equity against Prater, seeking a new trial, and set out the causes why he did not defend the former suit. He alleges he had employed the law firm of York & Salyer to attend to all his legal business in Pike county, and that he was informed by Judge York that all "appellee's ordinary suits" had been continued, and that, relying on that statement, he had left the county to attend to urgent business affairs; that the other members of the law firm employed by him was necessarily absent from the court on account of a death in his family; that York was also engaged in an important personal litigation that so engrossed his time and attention as to prevent his giving appellee's suit necessary care, that York was mistaken in the statement that the case referred to (it being an ordinary action) had been continued. It is assumed that the facts stated constituted "such casualty or misfortune preventing the party from appearing or defending" as is contemplated by section 518, subsec. 7, Civ. Code Prac. We held in Phillips v. Skinner, 6 Bush, 662, that a mistake of one's counsel in the course of preparation of a case was not a ground for a new trial. And it would seem that the facts relied on in this case for a new trial are scarcely sufficient, unless the mistake of the attorney was a casualty not due to want of ordinary care on his part, which is not alleged in this case. But, before a new trial can be granted, not only must the grounds relied on therefor be established, but a valid defense to the original action must be pleaded and proved. Section 521, Civ. Code Prac.

Appellee undertook in his petition for a new trial to set out his defense to the original action. It is as follows: "The plaintiff further states that some years ago a firm called and known as Sible, Barringer & Co. purchased of the defendant 490 trees, at $__, when in fact he was not the owner of but 233, and was short on sale of trees 276 trees, and the said trees were reasonably worth at the time $2.50 per tree, which amounts to the sum of $667.50; and the said firm of Sible,...