South Mountain Coal Co. v. Rowland

• Decision Date: 10 October 1924
• Parties: SOUTH MOUNTAIN COAL CO. v. ROWLAND ET AL.
• Court: Kentucky Court of Appeals

265 S.W. 320

204 Ky. 820

SOUTH MOUNTAIN COAL CO. v. ROWLAND ET AL.

Court of Appeals of Kentucky.

October 10, 1924

Appeal from Circuit Court, Breathitt County.

Action by John Rowland against the South Mountain Coal Company. Plaintiff dying, action was revived in name of widow and real representatives after default had been entered against defendant. From a judgment overruling a motion to set aside judgment and grant new trial, defendant appeals. Reversed with directions to set aside default judgment, and grant new trial.

W. L Kash, of Jackson, for appellant.

E. C Hyden, of Jackson, for appellees.

TURNER C.

On the 18th of October, 1921, John Rowland filed his action against appellant for a balance of $1,100 alleged to be due him under a contract said to have been made with that company. The petition alleges that, on the 7th of December, 1920 defendant entered into a contract with plaintiff by which he was employed by it for one year at a salary of $200 per month, to open up, install and put in operation a coal mine, and to build necessary tracks, chutes, tipples, and other appliances used in its operation, and to install all machinery and equipment necessary therefor; and that, after these things should have been done, he was to act as foreman or mine boss, and oversee the operation of the mine. He alleges he entered upon the discharge of his duties immediately and continued to work until the ______ day of February, 1921, and had been paid for his services during that period; but that defendant then requested him to hold up his work and not proceed therewith further for the time being, for business reasons. He says that he complied with this request of defendant, and that work was not resumed up to June, 1921, during which interim he held himself in readiness to continue the work at any time when requested; but that after June he tried to and did get work from others, but did not and could not earn therefrom exceeding $75 per month.

The process was promptly served on defendant, and its officials employed W. L. Kash an attorney to file its answer and defend the action. Kash was at the time attorney for the commonwealth in that judicial district, and was then a candidate for re-election at the approaching November election, which occurred on the 8th of November. The succeeding term of court began on the second Monday of November, which was just six days after the election.

No answer was filed before the term, and no step taken or order entered in the action during that term until the 18th day thereof, December 3, 1921, when the plaintiff entered a motion to take the allegations of the petition as true. Then no further step was taken until three days later, on the 6th day of December, when a default judgment was entered for the plaintiff.

On the 20th of December, 1921, John Rowland the plaintiff in the action died, and the same term of court was still in session up to and including the 10th day of January, 1922.

On that day defendant filed the affidavit of one of its officials stating that no administration had been granted to any personal representative of the deceased and giving the name of his widow and heirs at law, and with that as a basis, the court entered an order of revivor upon motion of defendant reviving the action in the name of the widow and real representatives of the decedent. The defendant then at the same term of court and after the entry of the order of revivor entered a ...