Kueborth v. Pratt , 3 Ky. L. Rptr. 540 ( 1882 )

Opinion by

Judge Pryor:

After the judgment rendered in this case, and after the land had been sold by the commissioner, the appellant offered and was permitted to file what is denominated an “answer and counterclaim,” in which he sets up certain causes of action against the appellee and asks to plead as a set-off or counterclaim to the judgment rendered. Why this was not done before the case went to final judgment, if the court could have considered it at all, does not appear. In no state of case, unless the amended answer can be regarded in the nature of a bill of review or a petition for a new trial, ought the court to have permitted its filing. It lacks every essential element to constitute a good pleading in either light. The appellee is amply able, so far as this record shows, to make good any liability of his to the appellant; so in any event the appellee is not without remedy. If the appellee was indebted to the appellant, growing out of the trust, the whole matter should have been litigated before the judgment.

That the purchaser does not want the sale of the land confirmed furnishes no ground for an exception to the report of sale. The second ground is equally untenable. If Pratt is indebted there is nothing to prevent him from recovering it. The refusal of the application for a new trial was proper, because no reason is assigned for it. It is complained that the court erred in not giving to the appellant the value of his fiat boat. There was no pleading or issue in the case authorizing such a judgment, and the attempt to raise the question after judgment upon an amended answer could not be entertained. The only question really in this case is as to this counterclaim set up after judgment. It was properly stricken from the files. Judgment affirmed.

Roe & Roe, for appellant. Geo. T. Halbert, for appellee.