Chaffin v. Fulkerson

95 Ky. 277 | Ky. Ct. App. | 1894

CHIEF JUSTICE BENNETT

delivered the opinion ot the court.

The appellee was ruled to make his petition more definite. lie attempted to do so, but failed. And on the 18th of September, 1889, he filed in court a petition as a substitute for the original petition and amendments. The substituted petition alleged that the appellee was the owner of seven hundred and thirty-three acres of land, giving its metes and bounds. It was alleged that the appellee had the possession of the survey, except the parcels that two of the defendants held, without, right, which parcels were described by metes and bounds in their answers thereto, filed in this case. It was alleged that the appellant also held the possession of a parcel of said land without right, containing forty acres, but that the appellee was unable -to give its boundary, and he called upon the appellant to give it. The appellee also asked that his title be quieted and that he have judgment for the possession of said forty acres of land.

The appellant filed a demurrer to this substituted petition, which was overruled, and the appellant was allowed thirty days in which to file an answer. But he made no answer, and at the August term of the court, 1890, the petition was taken for confessed, and judgment was rendered in favor of the appellee for the possession of the forty acres of land, giving its boundary. At the August term, 1892, the appellant tendered answer, controverting the allegations of the petition ; also tendering his affidavit, attempting to explain why he failed to file his answer in proper time. The substituted petition set up an action of ejectment against the appellant for the possession of forty acres land, and also an action to quiet his title to the remainder. If it be urged that the forty acres of land was not definitely described in tlie petition, it is sufficient to say that it is described as a part of a certain survey, which was sufficiently described’; and which, we think, is sufficient to support an action of ejectment. But if we are mistaken in this, the petition alleges that the appellee could not give the boundary of the forty acres, because he did not know it and could not ascertain it; but that the appellant di'd know it, and he was called upon to give it,' which he failed to do. If it be urged that the appellant was not summoned to answer the substituted petition, it is sufficient to say that he filed and urged his general demurrer thereto, which had the effect of entering his appearance to the action, and was a waiver of the necessity of a summons.

The appellant says in his affidavit as an excuse for no.t appearing.and filing his answer, that at the next term of court after the demurrer was filed and acted on, he was prevented from attending court by sickness in his family. It is to be observed that the judgment was not rendered at the next term of court, but at the term after that, and he gives no valid reason for not appearing at that term. Besides, the appellant had plenty of time to have filed his answer, and he offers no excuse for his failure to do so, except that he did not know what his rights and duties were in that regard. But this excuse simply victimizes him to the old adage, “when knowledge is a duty, ignorance is a crime.”

But it is said that the" appellant was advised by his attorney, at the time that the demurrer was overruled, that he could go home. This advice was proper; but it did not mean that the case was finally disposed of, and if the appellant so understood it, he was unfortunate.

The judgment is affirmed.