Weldon & Held v. Finley

• Decision Date: 17 October 1907
• Citation: 104 S.W. 701
• Parties: WELDON & HELD v. FINLEY.
• Court: Kentucky Court of Appeals

104 S.W. 701

WELDON & HELD v. FINLEY.

Court of Appeals of Kentucky.

October 17, 1907

Appeal from Circuit Court, Whitley County.

"Not to be officially reported."

Action by Weldon & Held against Henry Finley. From a judgment for defendant, plaintiffs appeal. Affirmed.

Johnson & Snyder, for appellants.

Tye &amp Denham, for appellee.

CLAY C.

This action was instituted in the Whitley circuit court by appellants, Weldon & Held, attorneys at law, to recover the sum of $600 for legal services rendered and expenses incurred in the defense of appellee's son, J. W. Finley, under an alleged employment by appellee through his agent, J. N Sharp. After issue was joined, the case was submitted to a jury which returned a verdict in favor of appellee. From an order refusing a new trial this appeal is prosecuted.

The first error assigned is that the trial court abused its discretion in allowing appellee's answer to be filed. The summons was served on appellee in Whitley county on March 6 1905. His answer was due at the April rule day, which was April 3, but was not then filed. The next rule day was May 1st, but no answer was then filed. The Whitley circuit court began on the second Monday in May. On the following day appellee's answer was filed in open court, accompanied by an affidavit in which he gave reasons for his delay. The court thereupon permitted the answer to be filed. The substance of the affidavit was that appellee resided 10 miles from the courthouse; that for more than five years before the commencement of this action J. N. Sharp had represented appellee in all cases, and that by reason of that fact, if for no other, was better able to represent appellee than any other attorney of the court; that he had made three trips to Williamsburg for the express purpose of seeing the said Sharp and consulting him in regard to the case then pending, but that on each and all of said trips the said Sharp was absent from his office and from the city of Williamsburg. Counsel for appellants contend that this affidavit did not show sufficient excuse for appellee's delay. Subsection 3 of section 367a of the Civil Code of Practice, which is a part of the practice act embraced in chapter 122, p. 272, Acts 1902, is as follows: "At the first rule day after the summons has been served ten days in the county, or twenty days in any other county, the defendant so served shall file his answer, or other plea he may have, whether of law or of fact. On the next rule day, the opposite party shall file his reply or other plea he may have, whether of law or fact and so on at each succeeding rule day until the issue shall be fully made up. If any party shall fail to file any plea at the rule day at which same is due, he may file the same at a subsequent rule day, and as soon as practicable, and he shall file therewith his affidavit or other sworn statement as to the cause of his delay, and if the court shall consider his excuse insufficient, it may at the next regular term strike such plea from the files." The wisdom of the foregoing provisions is not a proper subject for discussion by us. Suffice it to say that they are very liberal in their terms and certainly vest in the trial court a broad...