171 Ky. 482 | Ky. Ct. App. | 1916
Opinion of the Court by
Affirming.
This is an appeal from a judgment of the Christian circuit court, which sustained a general demurrer to the .petition as amended of the appellant, and he declining to plead further, the petition as amended was dismissed.
(2) In the petition of a defendant for a new trial, after setting out the cause of action against him fully, so that the court can determine when a valid defense to it is stated, the petition must then set out facts, which will constitute a valid defense to- the cause of action for which the judgment complained of was rendered. It is apparent, that when a default judgment is sought to be vacated, if the petition for a new trial does not disclose all the grounds upon which the cause of action rests and upon which the judgment complained of was rendered, the court will be unable to adjudge whether the defense plead is a valid one.
(3) In addition to setting out substantially the averments of the petition upon which the default judgment was rendered, or making the petition and proceedings a part of the petition for a new trial, and a valid defense, to constitute a cause of action for a new trial, under section 518, subsection 7, of the Civil Code, the petition must state facts, which show that the plaintiff was prevented from appearing in obedience to the summons, or from defending the action by some unavoidable casualty or misfortune, which ordinary prudence could not have guarded against. It is fundamental that a litigant is entitled to his day in court, but he is entitled to only one day. A defendant is required to be served with a summons. The purpose of the summons is to warn him that an action has been filed against him, and that the plaintiff in that action is seeking a judgment of some character or other against him, and it then becomes his duty to ascertain the nature of the suit and the character of relief
“If he waits until a final judgment has been rendered without exercising that diligence which the law requires of him, and without any fault of the plaintiff in the action, he is without remedy. ’ ’
In the instant case, the appellant does not plead that he was prevented from making a defense to the action, in which the judgment, sought to be vacated, was rendered, by any fraud or misdoing of the appellee, who recovered the judgment. He does not claim that any accident or surprise, which ordinary prudence could not have guarded against, prevented him from appearing or defending the action. He alleges that he was prevented from defending the action by an unavoidable casualty. He admits that he was served with a summons. He did not examine the record to find out what he was sued for, nor did he have any one else to do it for him. The casualty which he pleads and relies upon, was that he knew that he did not personally owe the appellee anything; that he was informed, by whom he does not say, that the suit was an effort on the part of appellee to fix liability upon the various persons who had agreed among themselves to make an effort to organize the Hopkinsville Apartment Company, and although he was one of them, he took no steps to defend the suit or to learn what it sought; he wrote a letter to Frank M. Fisher and notified him of the suit against the Hopkinsville Apartment Company; that afterwards Fisher came to Hopkinsville to see him and assured him that there was no liability attached to anybody on account of the claim set up by appellee, but that he would look after it and see that a, defense was made in behalf of the Company, when the case was called; that he was in no way personally liable to appellee; he accepted and relied upon the assurances and representations made to him by Fisher; he failed to answer the petition and dismissed it from his mind, believing that whatever defense was necessary would be made by Fisher or some of the others, who were active in their efforts to create the corporation; that he was informed that appellee did not seek a judgment against him, personally. No reason is given for Fisher’s failure to defend, or have defended, the suit. Fisher’s promise was to defend the cause for the corporation and not for
The judgment is therefore affirmed.