Simpson v. Antrobus

• Decision Date: 08 October 1935
• Parties: SIMPSON v. ANTROBUS et al.
• Court: Kentucky Court of Appeals

86 S.W.2d 544

260 Ky. 641

SIMPSON v. ANTROBUS et al.

Court of Appeals of Kentucky

October 8, 1935

Appeal from Circuit Court, Grant County.

Action by Raymond C. Simpson against James Antrobus and another. From a judgment for defendants, plaintiff appeals.

Affirmed.

F. A Harrison, of Williamstown, for appellant.

L. M Ackman, of Williamstown, for appellees.

REES Justice.

Raymond Simpson was seriously injured on January 31, 1933, by falling into a circular saw driven by a small motor. He was employed at the time of the accident by the appellees, James Antrobus and Evan Antrobus; and, alleging that his injuries were caused by the negligence of his employers, he brought this action against them to recover damages in the sum of $5,708. In their answer the defendants traversed the averments of the petition and pleaded contributory negligence. In an amended answer they alleged that the petition was not filed in the office of the clerk of the Grant circuit court until February 1, 1934; that the clerk did not issue summons thereon until March 14, 1934; and that the action was not commenced within one year next after the cause of action accrued, and they pleaded the one-year statute of limitations in bar (Ky. St. § 2516). A trial was had before a jury, resulting in a judgment and verdict for the defendants.

The sole ground relied upon for a reversal of the judgment is the alleged error of the trial court in giving instruction No. 5 in which the question of limitations was submitted to the jury. The criticized instruction permitted the jury to determine whether or not the petition was filed and the summons issued on or before January 30, 1934. It is impossible, of course, to determine upon what ground the jury based its verdict and, consequently, if the criticized instruction should not have been given, a reversal of the judgment is mandatory.

On the back of the petition is the following indorsement:

"Filed this 30th day of January, 1934, in my office; summons and two copies issued to Grant County, Kentucky.

"R. A. Blackburn, Clerk."

All of this notation except the signature, "R. A. Blackburn," is typewritten, and was typed in the office of the attorney who prepared the petition. The clerk merely signed it when the petition was handed to him. Below this notation on the back of the petition is the following in the handwriting of the clerk: "Filed 2/1/34." The clerk testified that it was his custom to indorse petitions in this manner when they were handed to him for filing, and that the indorsement indicated the petition was filed February 1, 1934. Below these two notations the following appears:

"The above '2/1/34.' was written by mistake, as the petition was filed January 30, 1934, as shown by above endorsement.

"R. A. Blackburn, Clerk."

This notation was made March 14, 1934, when the clerk issued a summons after being informed by the sheriff that no summons in the action had ever been placed in his hands. The summons which was executed March 16, 1934, was issued March 14, 1934, and there is no reference in the record to another summons except the reference in the first indorsement on the back of the petition. The appellant contends that this indorsement is conclusive, and the circuit court being a court of record, the entry by the clerk cannot be explained, varied, or contradicted by parol evidence, and he cites Green v. Goodrum, 4 Metc. 274. It is his contention that the trial court erred in permitting proof to be introduced to show the summons was not issued until after January 30, 1934, and in submitting that question to the jury.

The general rule is that a court of record speaks by means of its record only, and an entry made by the clerk with the authority of law must be regarded as a conclusive record and cannot be explained or impeached by other evidence. In other words, the record of a court imports...