64 Ky. 113 | Ky. Ct. App. | 1866
delivered the opinion of the court:
On a summons on a forfeited recognizance acknowledged by the appellant for the appearance of his son to answer an indictment for felony, in the Bourbon circuit court, that court rendered a judgment by default for the penalty of $500.
On a subsequent day of the same term the appellant, on reasonable grounds, verified by his oath, moved the court to set aside the judgment, and permit him to file an answer, alleging, as an excuse for the non-appearance of his son on the day fixed in the recognizance, that he “ was necessarily prevented from appearing in said court on said day because he was then, on said day, in the custody and control of the law of this State, and legally confined by legal process in the jail of Carroll county, Kentucky, upon a charge of felony, where he yet is.”
But the court, adjudging the answer insufficient, refused to admit it, or to revoke the judgment.
And, on this appeal from that judgment, the only question for the consideration of this court is the sufficiency of the proffered answer.
The statement that his son was “necessarily prevented,” is not an averment of a fact, but is only the appellant’s own deduction from the facts afterwards averred; and these, in the opinion of this court, do not justify that deduction.
If the Commonwealth, by her own act, prevented an appearance in discharge of the recognizance, she certainly should not enforce the penalty for non-appearance.
We therefore conclude that the judgment in this case is right according to the law and the facts, on which alone this court, having no executive discretion, must decide.
Wherefore, the judgment is affirmed.