Combs v. Combs

175 Ky. 523 | Ky. Ct. App. | 1917

Opinion op the Court by

William Rogers Clay, Commissioner

Affirming.

Plaintiffs, W. A. Combs, Polly Gayheart, and others, brought this suit against John L. Combs to recover a tract of land embraced in two surveys made in the name of Lewis Mosley, one for 400 acres and the other for 200 acres. The trial before a jury resulted in a verdict and judgment for plaintiffs. ' Defendant appeals.

The first question presented is whether appellee’s motion to strike the bill of exceptions should' be sustained.

It appears that the motion for a new trial was overruled on November 24, 1915, and appellant given until the third day of. the next term of the Knott circuit court to prepare and file his bill of exceptions. D. W. Gardner, judge of the Knott circuit court, presided at the trial. Judge Gardner’s term expired on the first Monday in January, 1916, and he was succeeded by Judge A. T. Patrick. When the bill of exceptions was tendered at the March term of the court, it was signed and approved by Judge Patrick. It is now the settled rule in this state that a judge who did not preside at the trial has no power to sign and approve the bill of exceptions; and where the term of office of the regular judge who presided at the trial has expired, neither he nor his successor in office has the power to sign and approve the bill. In such a case, the parties must resort either to a bystanders’ bill, or agree that the judge in office, when the bill'is presented, may sign and approve it. Sandy Valley & Elkhorn Railway Company v. Moore, 175 Ky. 163, 193 S. W. 1090. The record before us fails to show that the parties or their attorneys agreed that the bill.in question should be signed by Judge Patrick, and since, in the absence of such’ agreement, his certificate was not sufficient, it follows that the motion to strike the bill must be sustained.

In the absence of a bill of exceptions, the only question presented is whether the pleadings support the judgment. Sandy Valley & Elkhorn Railway Company v. Moore, supra; Clark v. Wallace Oil Co., et al., 155 Ky. 836, 160 S. W. 506. In this connection it is argued byj appellant that tbe judgment includes all tbe land covered by both tbe 200-acre and tbe 400-acre Mosley surveys, while tbe description in tbe petition embraces only tbe land covered by tbe 400-acre survey. We have carefully compared tbe description contained in tbe petition with that contained in tbe judgment, and they are identical in every respect witb tbe exception that the judgment concludes witb tbe following clause: . . . , so as to include all tbe land embraced in tbe 400-acre and 200-aere survey.” Since tbe descriptions are identical, and we cannot consider tbe evidence, we are unable to say that, because of tbe above clause in tbe judgment, it embraces land not covered by tbe petition. We, therefore, conclude that, so far as tbe land itself is concerned, tbe petition is sufficient to support tbe judgment.

But it is further argued that tbe judgment is not supported by tbe petition, because it adjudges tbe land to plaintiff, W. A. Combs, while tbe petition alleges that be and others were joint owners of the property. Even if we concede, without deciding, that this is the effect of tbe judgment, it affords appellant no ground for complaint. So far as be is concerned, it is immaterial whether tbe ownership and possession of tbe land were adjudged to one of the plaintiffs or to nil of tbe plaintiffs as joint owners. Only tbe plaintiffs other than tbe one in whose favor tbe judgment was rendered were adversely affected, and they are not complaining of tbe judgment.

Being of tbe opinion that tbe pleadings support tbe judgment so far as appellant is concerned, it follows that tbe judgment should be affirmed, and it is so ordered.