City of Lexington v. Home Construction Co., 112 Ky. 70

City of Lexington v. Home Construction Co.

112 Ky. 70 | Ky. Ct. App. | 1901

Opinion op the cotjbt by

JUDGE WHITE

Dismissing the Appeai,.

This action was brought by J. A. Barlow and another, citizens ’and taxpayers of Lexington, seeking to test the *73validity of an ordinance or resolution passed by the general Gouncil awarding a contract with the appellee, Home Construction Company. The city of Lexington, the Home Construction Company, the members of the general council, and the mayor and the city solicitor, were all made parties defendant. The action was filed July, 1899, within a few days after the ordinance or resolution was passed, and its validity is questioned for various reasons, not necessary here to mention, A temporary injunction was granted by the'circuit judge? To this petition a demurrer was filed by the city solicitor, and a motion to make more specific by some of the defendants. The Home Construction Com.pany filed answer and amended answer, which may be said to deny every material allegation in the petition. In September, 1899, the cause having been placed on the trial docket, the defendant, Home Construction Company, asked that it be submitted. This was refused upon objection being made, and an amended petition was permitted to be filed. In December, a demurrer to the amended petition was sustained, and another amendment was filed. In January, 1900, a demurrer was sustained to the petition as amended, and the Home Construction Company again moved a ' submission. In February, 1900, the plaintiffs tendered a fourth amended petition, and asked a rule against the city of Lexjngton to show cause why the petition should not be confessed as to it. In April, the fourth amended petition was refused to be. permitted to be filed, and the Home Construction Company again asked that the cause Ibe submitted, which was denied, and the plaintiffs given permission to file a reply to the answer. A demurrer was sustained to the reply, and again to the reply as amended. In May, 1900, the cause was submitted by agreement. On June 11,1900, the city of Lexington tendered, and asked *74permission to file, its answer, in which are pleaded ail the various steps taken in the passage of the resolution in question. This answer contains a prayer for a judgment as to the validity of the resolution. In July, 1900, the court refused to permit this answer of the city to be filed, and, on hearing under the submission, dismissed the petition of Barlow, etc. The city prosecutes this appeal, and the only party appellee is the Home Construction Company, its co-defendant in the court below.

The only question presented by appellant, city of Lexington, is the action of the trial court in refusing to permit it to file answer. It will be noticed that this ansiwer was tendered eleven months after the petition was filed, and after issues had been formed, and ¡proof taken by the plaintiffs and the Home Construction Company, and after the case had been submitted by agreement. No sufficient reason is shown why the answer was not filed sooner. True, the attorney who signs the answer is not the same that is sued as city solicitor;,but the new officers went into office in January, 1900, and no sufficient reason is shown why the answer was not filed before the submission in May. From the whole record, we can not say there was an abuse of discretion in refusing to permit the answer to be filed at the time it was presented. The question then presents itself, what right has a defendant to prosecute an appeal, as against its codefendant, from a judgment dismissing the petition against both? It will be noticed that there was no issue presented between the parties,, to this appeal, and as between them there was, of course, no trial, and no judgment in favor of either against the other. We are of opinion that appellant, city of Lexington, has no right to appeal, as against its codefendant, Home Construction Company, from a judgment in their favor. We *75say “their” favor, because, if the city did not desire to adopt the answer of its codefendant, it should have pleaded, presenting its position. If its position is neutral, then the judgment is not against its interest.

For this reason, the appeal of the city of Lexington is dismissed.

Petition for rehearing by appellant overruled.