Wathan v. Short's Admr. , 1868 Ky. LEXIS 316 ( 1868 )

Opinion op the Court by

Judge Hardin :

The appellant, as administrator of Bunnell, having been properly brought before the court as defendant to the action, and failing to assert his claim under the mortgage from Garvin and wife, the court rightly rendered the final judgment in bar of that claim, and the answer and cross petition subsequently presented ought not to have been filed or entertained unless the facts alleged in it constituted grounds for vacating or modifying the judgment either for some unavoidable casualty or misfortune which had prevented appearance and d< fense, as contemplated by the 7th subdivision of section 579 of the Civil Code, or for the newly discovered material evidence which could not before with reasonable diligence have been discovered and produced according to sctions 369 and 373 of the Code. Testing the pleading offered by the requirements of either of these provisions of the Code, it seems to us to have been clearly insufficient, and was therefore properly rejected. It neither discloses any reason why the appellant should not as a vigilant' litigant have set up his claim in proper time, nor the discovery of any fact which he might not easily have known as soon as he was served with process as á defendant in the action.

Wherefore, the judgment is affirmed.