James v. Carter , 274 Ky. 273 ( 1938 )

Affirming.

Edith James and Maggie Leete have appealed from an equity judgment recovered against them by A.C. Carter, on Sept. 9th, 1936.

Petition was filed on July 18th, 1936. The parties were all duly summoned, and on Sept. 9th, 1936, that being the third day of the Floyd Circuit Court, no answer having been filed, judgment was taken against appellants by default. On Sept. 16th, 1936, a motion was made by appellants to set aside the default judgment and an answer was tendered which the court subsequently treated as filed, and on October 24th, 1936, we find this order:

"This cause having been submitted upon motion of the defendant, Edith James, to set aside the judgment entered herein on Order Book No. 38, page 316, on Sept. 9th, 1936, the court being advised, overruled said motion, to which ruling of the court the said defendant objects and excepts.

"It is further ordered that the answer filed herein by the defendants be and the same is stricken from the record."

Thus we see there were two judgments rendered by the Floyd Circuit Court, (a) the default judgment of Sept. 9th, 1936, which the court refused to set aside by its judgment (b) of October 24th, 1936. From either or both of which, either Edith James or Maggie Leete, or both, could have prosecuted an appeal, but they have elected to prosecute their appeal from the judgment (a) of Sept. 9th, 1936, whereas they should have prosecuted their appeal from the judgment (b) of Oct. 24th, 1936, for if any error was committed, that error was contained in this last judgment (b) when the court refused to set aside the default judgment (a) of Sept. 9th, and struck appellants' answer from the record. Since no appeal has been prosecuted from the judgment (b) of Oct. 24th, 1936, it follows that the judgment (a) of Sept. 9th, 1936, from which this appeal is prosecuted, must be and it is affirmed.