Scheible v. Hart

• Decision Date: 19 December 1889
• Citation: 12 S.W. 628
• Parties: SCHEIBLE v. HART.
• Court: Kentucky Court of Appeals

12 S.W. 628

SCHEIBLE v. HART.

Court of Appeals of Kentucky.

December 19, 1889

Appeal from circuit court, Hardin county.

"Not to be officially reported."

Action by George C. Scheible against Silas Hart for trespass. Judgment for plaintiff. Defendant appeals.

J. P Hobson, for appellant.

Sprigg & Wilson, for appellee.

HOLT J.

In 1887 the appellee notified the appellant that he would no longer abide by the division fence which had existed for many years between their lands, and would, between the 1st day of December and 1st day of March following, that being when the statute permits it, cut loose from him. This he did; and the appellant, having extended his fencing near enough to the new fence built by the appellee to in effect keep his lands inclosed, the appellee sued him in trespass, claiming that the appellant, in doing so, had entered upon his land. The petition avers that notice was given of the intention to cut the fencing loose, but does not say that it was given three months before it was done, as required by the statute. Gen St. 761. There was no objection made to the petition however. The answer made no issue of insufficient notice. It only put in issue the right to the land where the acts complained of were done, and also set up a counter-claim for a portion of the division fence, which, it was claimed, appellee had appropriated without right. A trial resulted in a small verdict for the appellee, upon which a judgment was rendered. A motion was then made, based upon written grounds, for a new trial. It was overruled. Then a motion was made to set aside the judgment, and render one for the appellant upon the pleadings non obstante veredicto, because the petition failed to aver the three-months notice.

This objection to the pleading came too late. A motion for a judgment non obstante properly comes from the plaintiff. It is true the appellant was such as to his counter-claim, but a motion of this character is due before the entering of the judgment. Freem. Judgm. § 7.

It appears that one Montgomery formerly owned the Scheible land and one Brooks the Hart land. Montgomery built the division fence; and, Brooks complaining that it was too far over on him, Montgomery moved it back to where it was when this trouble arose between the appellee and the appellant. There is some evidence that, when this was done, Brooks and Montgomery agreed upon a division line between them, which they...