Mansfield v. Mansfield's Admr. , 1868 Ky. LEXIS 319 ( 1868 )

Opinion op the Oourt by

Judge Williams:

The allegations of the petition only authorized a recovery for half the sum of $2053.83 paid by Samuel Mansfield as the surety of Washington Mansfield, it being averred that the latter was insolvent and that appellant was co-surety with appellee in the debt, though the latter was the drawer and the appellant an indorser, and Washington Mansfield the acceptor of the bill, therefore, the judgement for the entire sum was a clerical misprision which must be corrected on motion in the lower court and until acted on by it this court has no jurisdiction of the matter. The allegations of the petition present a good cause of action for one half of $2053.83, and being unanswered we cannot reverse because the petition fails to show a cause of action. The allegations and not the prayer of the petition should control a judgment by default. Judgment affirmed as to the latter.

Reid & Murray, for appellant. Edwards, Lewis & Gockrill, for appellee.