Samuels v. Weikel

• Decision Date: 23 June 1922
• Parties: SAMUELS v. WEIKEL.
• Court: Kentucky Court of Appeals

242 S.W. 836

195 Ky. 552

SAMUELS v. WEIKEL.

Court of Appeals of Kentucky.

June 23, 1922

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Action by Fred Weikel against John W. Samuels and another. Judgment for plaintiff, and the named defendant appeals. Motion to dismiss the appeal overruled, and judgment reversed for further proceedings.

Edward G. Klemm, of Louisville, for appellant.

Walter Alt, of Louisville, for appellee.

MOORMAN J.

The appellee, Fred Weikel, recovered a judgment for $740, with interest thereon at the rate of 6 per cent. per annum from June 30, 1917, until paid, against Maybelle Samuels and her husband, John W. Samuels, in the Jefferson circuit court. John W. Samuels, the appellant, is seeking to have the judgment set aside on this appeal, on the ground that it is erroneous as to him.

Maybelle Samuels, the wife of appellant, purchased some real estate in Louisville, Ky. and agreed as part of the consideration to assume the payment of two mortgage notes against the property. The prior lien was held by the Kentucky Title Savings Bank &amp Trust Company, and the second lien of $740 was in favor of J R. Dorsey. Appellee became the holder of the second lien, and in May, 1918, instituted suit on the note, seeking a personal judgment against Maybelle Samuels, and also to have his lien on the mortgaged property enforced. The Kentucky Title Savings Bank & Trust Company was made a party defendant, and was called on to set up any claim that it had against the property. Appellant was also made a party defendant, and by the prayer of the petition a personal judgment was sought against him, as well as Maybelle Samuels. There was filed with the petition the note for $740, with the indorsements thereon by which it became the property of appellee, and also the mortgage on the property executed to secure the payment of the note.

Appellant was summoned, but made no defense to the suit. Personal judgment was rendered against him and Maybelle Samuels and the mortgaged property was adjudged to be sold. At the sale the property brought only a few dollars more than enough to pay the costs of the suit and the first mortgage debt adjudged to be superior to appellee's claim. This appeal is prosecuted to reverse the personal judgment against appellant. No motion was made by appellant in the circuit court for a new trial or to vacate the judgment. It is contended for appellee, on his motion to dismiss this appeal that the judgment is a clerical misprision, and this court is without jurisdiction to review it, because no motion to correct it was presented to or acted upon in the circuit court.

Section 518 of the Civil Code of Practice authorizes the granting of a new trial. after the expiration of the term at which the judgment was rendered, on any of the grounds set out in that section, including those mentioned in section 344. But the error in this judgment is not included in any of the grounds specified in section 518 of the Code, unless it be that it is a clerical misprision. A clerical misprision is not ground for an appeal until acted on in the lower court. Morrison v. Beckham, 96 Ky. 72, 27 S.W. 868, 16 Ky. Law Rep. 294. The misprision of the clerk contemplated by section 518 consists of error or mistake of the clerk, and not error of the court, and, since the court rendered judgment in accordance with the prayer of the petition, it is our view that appellant is not asking relief from a clerical misprision, but from an erroneous judgment, which the circuit court, after the expiration of the term at which the judgment was rendered, did not have the power, under section 518 of the Code, to vacate or modify.

Under section 514 of the Civil Code of Practice, a judgment may be reversed or modified on appeal to this court for errors appearing in the record, and we have frequently held, in...