Montgomery v. Kirwan , 10 Ky. Op. 877 ( 1880 )

Opinion by

Judge Cofer:

Eighteen months elapsed between the service of process on Mulligan’s cross-petition on Mrs. Montgomery and her husband before there was an offer to file an answer to it. No reason was offered for the delay, and this court cannot decide that there was an abuse of discretion in refusing to allow it to be filed.

That answer and cross-petition, being unanswered, established the fact that there was a balance due to Mulligan equal to the sum for which judgment was rendered, and the only question remaining is whether there was error in directing the property to be rented to raise a sum sufficient to pay the balance due to Mulligan for his work and material.

P. B. Muir, for appellants. Russell & Helm, for appellees.

If it be conceded that Montgomery had no power to encumber his wife’s property, about which we express no opinion, the chancellor had power under the statute to permit the builder to remove the building; and as a large part of the contract price had been paid, and the rent would discharge the lien in a short time, the appellants were not prejudiced by the order to rent being made instead of an order to permit the building to be removed.

Wherefore the judgment is affirmed.