|Appeal from Circuit Court, Knox County|
|Jones Vs. Goodin|
Court of Appeals of Kentucky|
JONES et al.
May 24, 1898
The appellee, Mary J. Goodin, instituted suit against James T. Gibson and the appellants herein, seeking to recover judgment upon a note executed to her for the sum of $885, with interest from June 18, 1889. The defense interposed by the appellants is, in substance, that they were only sureties of Gibson, and that Tinsley & Lock brought suit against Thomas J. Goodin, husband of appellee, seeking to subject the amount of the note in controversy to a claim they held against the said Thomas J. Goodin, upon the averment that the note was in fact the property of Thomas J. Goodin; and appellants aver that such is the fact. The judgment rendered in the case of Tinsley & Lock against Thomas Goodin, etc., is relied on by the appellants as a novation, and as giving an extension of time to Gibson to pay the note, and thereby materially affecting the rights of the appellants as the sureties of Gibson; and they insist that the judgment was such a novation and such an extension of time to Gibson as in law operated to release them from any liability as sureties of Gibson. It is also claimed that at the time of the rendition of this agreed judgment, and for some time afterwards, Gibson was solvent, but afterwards became insolvent, and thereby damage and injury resulted to these appellants. The judgment is as follows: "William Lock & J. H. Tinsley, Plffs., vs. Thos. Goodin, etc., Defts. Judgment. In this case it is adjudged that plaintiffs, William Lock and J. H. Tinsley, do recover of deft., Thomas Goodin, the sum of $1,260.15, with interest from December 7, 1887, until paid, and the costs herein expended, and their attachment is sustained. It is further adjudged by agreement--the defendant Mary J. Goodin, by attorney in open court consenting thereto, and waiving her right to an equitable settlement, and her right to the fund hereinafter named in favor of plaintiff, but no further--that the $1,000, with its interest, owing by the garnishee, Gibson, herein, be, and same is hereby, adjudged to plaintiff, and they have the sole and exclusive right to collect same. This judgment herein is not to be carried out, and said judgment is to remain uncollected, until after the adjournment of the 51st congress; and, should the said Lock and Tinsley succeed in obtaining the passage of an act of congress releasing them from the payment of said judgment or any part thereof to the United States, then said Lock and Tinsley will be only authorized to collect from the garnishee under this judgment such sum of money as they may fail to get released from, and such cost and expense about getting released from same as may be hereinafter adjudged to them, and their costs herein expended, and the residue of said fund will belong to defendant Mary J. Goodin, and is hereby adjudged to her as her claim, provided plff. gets relief." The plaintiff's pleading and contention is that she never agreed to any such judgment, or authorized the same to be entered. It is also contended for the appellee that the judgment in no wise affected the rights or privileges of the appellants, or offered any legal obstruction to the collection of the note against Gibson. The Gibson note was not then due. It also appears in this action that the plaintiff instituted an action to have the said judgment set aside, and that the same was set aside, upon the ground that it had never been authorized by her. After the issues were made up, the case was submitted to a jury, and a verdict rendered in favor of plaintiff; and, appellants' motion for a new trial having been overruled, they prosecute this appeal. The grounds for a new trial are, in substance, because the verdict is not sustained by the evidence, and is contrary to the evidence, and to the law as given by the court. No error as to the refusing or giving of instructions is complained of; and it may be remarked that we perceive no error in the instructions given or refused; nor do we think the verdict of the jury contrary to the law as given, and, inasmuch as the evidence was somewhat conflicting, it was particularly the province of the jury to determine the facts, and we cannot say that the verdict is contrary to the weight of the evidence; nor do we think that the court erred in refusing to render a judgment in favor of appellants notwithstanding the verdict of the jury.
Judgment affirmed, with damages.
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