64 Ky. 242 | Ky. Ct. App. | 1866
delivered the opinion op the court :
L. C. and H. T. Pearce, as assignees of John A. Co-burn, recovered a judgment against James M. Coburn & Co., in the Mason circuit court, for $1,000, with interest froúi the 28th of January, 1859. Several executions issued on this judgment were returned by the sheriff “ no property found.”
The appellees, Currens & Owens, having in the meantime become indebted to J. M. Coburn & Co. in the sum of $6,440 76, the price of their hardware establishment, purchased of them on the 1st of July, 1859, gave their six notes to J. M. Coburn & Co., as follows:
In March, 1860, L. C. and H. T. Pearce brought their suit in equity against James M.' Coburn & Co., and Currens & Owens, setting forth their judgment and return of “ no property found,” and alleging that Currens & Owens were indebted to James M. Coburn & Co. in an amount larger than their said judgment, with interest and costs, and asking that so much as necessary to pay their judgment and costs be attached in the hands of Currens & Owens, and adjudged to be paid to them. In this suit, said Currens & Owens having failed to answer the petition, it was taken for confessed as to them, and judgment was rendered against them as garnishees for the amount of the plaintiffs’ said judgment.
By the return on an execution issued on this judgment, it appears that Currens & Owens paid thereon, on the 15th day of August, 1860, the sum of $1,073 46.
A subsequent execution for the residue of the judgment, amounting, with sheriff’s commission, to $203 35, appears to have been replevied by Currens & Owens on the 7th day of September, 1860; and the replevin bond was afterwards assigned by the Pearces to H. Gilmore, who assigned it to John A. Coburn, the original holder of the debt on James M. Coburn & Co., and who appears to have continued to be the real owner of the debt, notwithstanding his assignment of the note to L. C. & H. T. Pearce.
On the 30th day of October, 1860, Currens & Owens brought this .suit in equity, and obtained an injunction to stay the collection of said replevin bond. By their petition and amendments thereto they seek to vacate or
They assign their mistaken belief aforesaid as a ground for relief in equity as “ accident or surprise, which ordinary prudence could not have provided against,” and the discovery of the fact that one of their notes for $1,073 was held by Cox instead of Coburn & Co., as newly-discovered “ evidence material for them, which they could not, with reasonable diligence, have discovered and produced at the trial.”
On final hearing, the circuit court rendered a judgment perpetuating said injunction, and that Ourrens & Owens recover their costs; and from this judgment this appeal is prosecuted.
The correctness of the judgment is questioned by the appellants on several grounds; but that which seems first to require our consideration is the objection that no sufficient reason was shown for re-examining the former
It is apparent, from the averments of the petition above referred to, that the appellees sought to bring their case within the ground prescribed by the 7th subdivision of section 369 of the Civil Code, or by the 7th subdivision of section 579 of the Code.
The first of these provides that a former decision may be vacated or a new trial granted because of “ newly-discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced on the trial.” And the other provides that the court shall have power, after the expiration of the term, to vacate or modify a judgment or final order by granting a new trial “for unavoidable casualty or misfortune, preventing the party from appearing or defending.”
We do not think the mere mistaken belief of the appellees as to the note held by Cox, though it may have lulled them, can be properly regarded as such an unavoidable casualty or misfortune as is contemplated by the foregoing provision of the Code; and we are aware of no other provision of the Code or established rule of practice which confers on the circuit court the revisory power exercised in this case, upon the grounds disclosed by the appellees, unless such power is conferred by said 7th subdivision of the 369th section of the Code.
Assuming, as we think we are authorized to do by the evidence, that when the judgment was rendered against the appellees as garnishees, they were wholly without notice that Coburn had transferred the note then in the hands of Cox, the inquiry then arises, whether or not the fact subsequently discovered was both material for the
This conclusion renders the consideration of other questions unnecessary.
Wherefore, the judgment is reversed, and the cause remanded, with directions to dissolve the injunction with damages and dismiss the petition.