146 Ky. 616 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
In 1903 J. A. Salmon brought an action in the Green-up Circuit Court against appellant for $289.00 and obtained an attachment which was levied upon some logs in the Ohio river. Appellant filed an answer and counter-claim by which he sought to recover of appellee something over $6,000.00. (This we learn from the briefs of counsel. The record of the old suit is not before us.) That suit was continued by one or the other of the parties from time to time, until the early part of 1909, at which time the court ruled the parties to prepare the case for trial. B. F-. Bennett, appellee’s original attorney, is now more than eighty years of age and very feeble in mind and body. After the parties were ruled, Bennettt not being able to prepare the case, wrote to Salmon and told him he would have to get another attorney to look after the case for him. Salmon then employed the firm of Malin & Malin, of Ashland, Ky. They took depositions preparatory to trial at the October term in 1909, of the Greenup Circuit Court. The regular judge of that court began that term but took sick and had to abandon the court. This fact was certified to the Governor, Willson, and he first appointed Floyd Byrd to preside over the balance of the term, but he declined the position. It appears that Malin, who lives in Ashland, went.to Greenup on Monday of the last week of the court, and found matters as stated, no one having been appointed at that time in the place'of Byrd, and it appears that the litigants in general did
The court rendered judgment in that action against appellee on appellant’s counter-claim for over $3,000.00, and this action was brought' under sub-sections 4 and 7 of Section 518 of the Civil Code, to set that judgment aside. We are confident that Cooper intended no wrong by not explaining fully to the court the agreement be-iween him and Malin before entering into a trial of the case. The court committed an error when he refused to continue the case after he ascertained the true facts. ■The disturbed condition of that court on account of the
Appellant suggests that appellee’s counsel might contend that the order appealed from was not a final order, as it only granted the parties a new trial. They do not so contend. Appellant cites the cases of McCall v. Hitchcock, 7 Bush, 615, and Simpson v. Bryan, 17 Ky. L. R., 752, which show conclusively that it was a final order, and that appellant had a right to prosecute this appeal.
For the reasons stated, the judgment of the lower court is affirmed.