Turner v. Hamlin

• Decision Date: 26 February 1913
• Citation: 152 Ky. 469,153 S.W. 778
• Parties: TURNER v. HAMLIN.
• Court: Kentucky Court of Appeals

153 S.W. 778

152 Ky. 469

TURNER v. HAMLIN.

Court of Appeals of Kentucky.

February 26, 1913

Appeal from Circuit Court, Bell County.

Suit by Sim Hamlin against J. P. K. Turner. Judgment for plaintiff and defendant appeals. Reversed and remanded.

N. J Weller, of Pineville, for appellant.

O'Rear & Williams, of Frankfort, for appellee.

HOBSON C.J.

Sim Hamlin brought this suit in equity on December 27, 1897, in the Bell circuit court against J. P. K. Turner and his guardian, C. Hurst. An answer was filed by the guardian on January 6, 1899. On the next day, January 7th, the plaintiff entered a motion to submit the case for judgment, and on January 26th a judgment was entered by which the plaintiff recovered of Hurst as guardian $61, with interest and costs and three tracts of land belonging to the ward were ordered to be sold to satisfy the judgment. The sale was made on January 29, 1899, and 30 acres of the land was bought by the plaintiff for the amount of his debt and cost. The sale was reported to the court at its January term, 1899. The defendant filed exceptions to the sale, which were overruled and the sale was confirmed. After Turner became of age, he took out an appeal from the judgment before the clerk of this court; but in the meantime the papers of the original case were lost, and had to be supplied by a proceeding in the Bell circuit court. The commissioner appointed for that purpose filed his report supplying the lost papers. The court confirmed his report, and ordered that the papers so supplied should be taken and treated as the original papers in the case. A copy of the supplied record has been filed here, and the appeal has been submitted.

It is insisted for the appellee that it is apparent on the face of the supplied record that the answer which has been supplied is not the answer that was originally filed for the reason that it contains three paragraphs, the second and third setting up affirmative matter which required a reply, and it is urged that this court must know that, if such an answer had been filed, the case would not have been submitted for judgment, and a judgment entered in favor of the plaintiff.

It is also insisted that the record before us does not show that the commissioner took proof or that it was shown in the circuit court that there was no attested copy of the paper in existence. But all of these objections should have been urged in the circuit court in the proceeding to supply the record. We must presume here that the commissioner proceeded properly, and that there was no error in the proceeding of the circuit court.

The only thing necessary to be brought here on this appeal by the appellant from the original judgment is a copy of the supplied record and a copy of the orders of the court supplying it. The judgment of the court in that proceeding is a final order, and it was unnecessary to bring the proof heard before the commissioner here on this appeal. That proof would only be material on an appeal from the order of the circuit court supplying the record. If the appellee had taken an appeal from that order, we would either hold up this appeal until that appeal could be decided, or we would hear the two appeals together. But no suggestion has been made that we should do this, and, on the contrary, this appeal has been submitted by consent. It is true that, after the court entered a final order supplying the record, Hamlin entered a motion to set aside the order, and to be allowed to file exceptions, and the case was submitted on the motion. But he then tendered no exceptions, and the court made this qualification to the order without any objection or exception by Hamlin: "But this motion is not to prejudice the right of the defendant J. P. K. Turner to use the record supplied by said commissioner to complete and perfect the appeal from the original judgment herein now pending in the Court of Appeals." This order was entered on June 20, 1912, or six months before the submission of this appeal, and there is no suggestion that the circuit court has sustained the motion. On the contrary, it is suggested that the motion was overruled. At any rate, it seems to us that the submission of this case without objection, on the record as it stands, must be treated as a consent by both the parties to try the case on the record.

There is no suggestion that the plaintiff's petition is not correctly supplied, and we find that the petition is insufficient to support the judgment. It is alleged in the petition that Hurst is the statutory guardian of...