110 Ky. 832 | Ky. Ct. App. | 1901
Opinion of the court by
Affirming.
Appellee executed a deed of assignment for the benefit of his creditors to one Craig, w’ho executed bond with ap
The petition as to the $750 seems to us sufficient, especially in view of the fact that no demurrer was filed to that part of the petition; and, if not technically sufficient, we think it was cured by the answer.
The notice pleaded in the answer was given under section 1668, Kentucky Statutes. It is not necessary to consider what would be the effect of such a notice if not complied with, in a case to which the section was intended to apply, as we are of opinion that it does- not apply to a case in which suit has been brought, or in which execution has been issued, against the principal. The defense of failure to notify, appellant company of a failure on the part of the principal to perform his duty can not apply ■to a case like this, where the breach of duty consisted, as appears from the petition, in failure to pay over the amount ascertained to be due in the settlement suit.
The judgment complained of was rendered upon a motion for judgment for the amount not controverted, after notice, objection, and hearing. This motion raised the question of the sufficiency of paragraph 5 of the answer. It is obvious that, if the judgment obtained in the settlement suit against the' principal is conclusive upon the surety, the trial court ruled correctly upon this question.
It would seem that the obligation assumed by the surety
But complaint is made that the appellant was misled to its prejudice by the court’s action in overruling a demurrer to the various affirmative paragraphs of the answer, and that it was error to give judgment against it after having held its answer presented a valid defense, without giving warning that the court would hold its answer did not present a defense, so as to give an opportunity to amend. In Moore v. Harrod (19 Ky. L. R., 406) (40 S. W., 675,) there had been two efforts to rectify an omission from the petition, but the court nevertheless decided the case against the plaintiff because of the omission. And in Ashbrook v. Roberts, 82 Ky., 298, the court permitted a pleading to be filed against objection, but disregarded it because it was not signed, and rendered judgment against the pleader. It was there said: “If the order filing the