Hughes v. Grogan , 1914 Ky. LEXIS 802 ( 1914 )

OpinioN op the Court by

Judge Carroll

Affirming.

These two suits were brought to enforce the collection of notes executed for the purchase price of land, and to enforce a lien on the land, by which the notes were secured. A judgment went by default in each case, and a reversal is asked upon the ground “that the plaintiff failed to file with the petition as exhibits the promissory notes sued on” and upon the further ground “that the allegations of the petition, with reference to the ability of plaintiff to convey according to the terms of his contract, are not sufficient.”

In reference to the notes, the petition, after setting out sufficiently the substance of the notes, said that they were held subject to the orders of the court and would be filed if required, and that the reason for not filing them was to save costs. Section 120 of the Civil Code provides:

“If an action, counterclaim, set-off or cross-petition be founded on a note, bond, bill or other writing, as evidence of indebtedness, it must be filed as a part of tbe pleading, if in tbe power of tbe-party to produce it; and if not filed, tbe reason for tbe failure must be stated in tbe pleading; if upon an account, a copy thereof must be filed with tbe pleading.”

Under this section it is of course tbe proper practice to file with tbe pleading tbe writing upon which a recovery is sought, but tbe failure to file it does not affect tbe validity of tbe judgment. As said in McGhee v. Sutherland, 84 Ky., 198, “It is true that section 120 of tbe Civil. Code provides that if an action be founded upon a writing, it must be filed as a part of tbe pleading or its absence explained; but if this be not done, and the adverse party be duly summoned and fails to raise any question as to it, be cannot complain of it after judgment.”

If a writing, which is tbe evidence of tbe indebtedness or liability constituting tbe cause of tbe action, is not filed, the adverse party should ask a rule to have it filed, and a failure to file it, or to offer a sufficient reason for not so doing, will be cause for dismissal of tbe action: Preston v. Roberts, 12 Bush, 570. It was further held in that case that if tbe adverse party fails to take steps to require the writing to be filed, and judgment is rendered on tbe pleadings, it will not be reversed because tbe written evidence of tbe debt or liability was not filed.

Tbe criticism of tbe allegations of tbe petition, in reference to conveying tbe property according to tbe terms of tbe contract, is not well taken.

Tbe judgment in each case is affirmed.