26 S.W.2d 30 | Ky. Ct. App. | 1930
Affirming.
This is an action for a new trial instituted by Katie B. King against the executors of J.M. King, Sr. The circuit court rendered a judgment in favor of the defendants, and the plaintiff has prosecuted an appeal. The executors instituted an action against Katie B. King to enforce a vendor's lien for $2,950. The defendant interposed various defenses to the action, and the issues in that case were completed at the February term of court, 1928. No proof was taken until January, 1929, at which time the plaintiffs look depositions. At the February, 1929, term of court, the defendant filed a written motion for a continuance sworn to by the defendant and supported by the affidavit of her physician. The grounds *539 for continuance were adjudged insufficient by the court and the case was submitted, resulting in a judgment for the executors. No appeal was taken from the judgment, but in April, following, this action was instituted for a new trial upon the grounds: First, that the court had erred in refusing a continuance; and, second, that plaintiff had discovered an additional defense to the action and some additional evidence to sustain her original defenses to the action.
It is first argued that the court should have granted the appellant a continuance of the first case, but an error of that character does not afford any ground for an action for a new trial. It is reviewable on a direct appeal from the judgment. Under section 519, subsection 7 of the Civil Code of Practice, a new trial may be granted for unavoidable casualty or misfortune preventing the party from appearing or defending. Plainly a party is not prevented from appearing or defending a case in which an answer has been filed, and ample opportunity afforded to take proof. There is no doubt of the power of this court to correct an error of the circuit court in refusing to grant a continuance. But such error must be corrected in a direct appeal for that purpose. Watson v. Bean,
The next insistence is that appellant was entitled to a new trial under section 340, subsection 7 of the Civil Code of Practice, providing that a new trial may be granted for "newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial." If the grounds for a new trial be discovered after the term at which the decision was rendered, the application may be made by a petition, as was done in this case. Section 344, Civil Code of Practice. Appellant alleged that *540
after the rendition of the judgment she had discovered a shortage of more than 10 per cent. in the land conveyed to her by the testator, and for which she had executed notes. Barton v. Jones,
The circuit court committed no error in dismissing the action for a new trial.
The judgment is affirmed.