Hibler v. Shipp
Court of Appeals of Kentucky
Case 12—PETITION ORDINARY APPEAL FROM BOURBON CIRCUIT COURT. 1. The petition does not contain a cause of action. (Huffaker v. National Bank, Somerset, 12 Bush, 289.) 2. The dismissal of the former suit is a final judgment, and bar to the present action. (Freeman on Judgments, 19 ; Bank of Commonwealth v. Hopkins, 2 Dana, 395; Wood v. Ramond, 42 Cal.
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Case 12—PETITION ORDINARY APPEAL FROM BOURBON CIRCUIT COURT. 1. The petition does not contain a cause of action. (Huffaker v. National Bank, Somerset, 12 Bush, 289.) 2. The dismissal of the former suit is a final judgment, and bar to the present action. (Freeman on Judgments, 19 ; Bank of Commonwealth v. Hopkins, 2 Dana, 395; Wood v. Ramond, 42 Cal. Rep., 644; 7 J. J. Mar., 165; 3 B. Mon , 741 ; 3 Met., 29.) 3. Appellee promised to sue upon the note, and did sue, but afterwards dismissed the suit without appellant’s consent. This released the appellant. (Story’s Eq. Jurisprudence, secs.…
1Opinion of the CourtChief Justice Pryor
The appellant Hildreth being the 'surety of Hibler on a note for about six thousand dollars, was sued by the payee Shipp, and judgment obtained against him in the Bourbon Circuit Court, at its April term, in the year 1878. The case is brought to this Court for revision, by the surety, and the following errors assigned:
1st. The petition fails to present a cause of action.
2d. A former adjudication of the matter in controversy.
3d. Bad faith on the part of the payee towards the surety,, amounting to fraud.
*66The petition as amended presented a cause of action. It is alleged ‘ ‘ that by a writing…
2Cited by4 opinions
- Morgan v. GoodeCourt of Appeals of Kentucky · 1912
- Edinger v. MillerCourt of Appeals of Kentucky (pre-1976) · 1943
- Green v. CommonwealthCourt of Appeals of Kentucky · 1918
- Vincent v. NicholsCourt of Appeals of Kentucky (pre-1976) · 1946