129 Ky. 75 | Ky. Ct. App. | 1908
Opinion op the Court by
Affirming.
In 1906 Augusta. Dieco, in an action brought by her against the city of Owensboro and J. J. Blocker, the husband of appellant, Clara Blocker, to recover damages for personal injuries sustained by obstructions on the sidewalk in the city over which she stumbled and fell, obtained a'judgment for $500 and costs. The defendants in that action prosecuted an appeal to this court, where the judgment was affirmed. In 1907 Mrs. Dieco, in consideration of the sum of $672 paid her by Clara Blocker, assigned to her the judgment without recourse. Thereupon the appellant, Clara Blocker, brought this suit against the city
The first question we need consider is whether or not the findings of fact by the trial court are supported by the record. If they are, his conclusion of law is correct. It is well settled that, although a person injured by an obstruction in the street may sue the city alone, or both the city and the person who placed the obstruction in the street, and recover damages against both, and look to either or both for-satisfaction of the judgment, yet as between the wrongdoers the city may, if it is required to satisfy the judgment, recover the amount thereof from the person who placed the obstruction in the street. DilIon on Municipal Corporations, section 1035. As Blocker, one of the judgment defendants, was solvent, Mrs. Dieco, the judgment creditor, might have collected her judgment from him by execution, or have attempted to collect the same from the city, and, if it failed to pay, have proceeded by mandamus to require
In the consideration of these questions we cannot overlook the fact that the appellant is the wife of J.
Upon the trial in the lower court, a transcript of the record in the case of Dieco against the city of Owensboro and Blocker was considered as evidence by the court. This transcript was filed and made a part of the answer of appellee, but was not filed with the answer, nor until the appellant obtained a rule against the appellee to.file it. No objection or exception was made or taken to the competency or sufficiency of the transcript as filed. After the judgment was rendered the clerk taxed the fee for the transcript as a part of the costs against appellant, who
Upon a consideration of the entire case, the judgment is affirmed.