Walker v. Thomas
Court of Appeals of Kentucky
Case 76 — PETITION EQUITY — APPEAL PROM OWEN CIRCUIT COURT. 1. A judgment in an ordinary action can not be modified by an order in an equitable action, except for a defense arising or discovered subsequent to the rendition of judgment in the ordinary action. (Civil Code, sec. 17.) 2: A defense that could have been pleaded in an action before judgment is not afterwards available.
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Case 76 — PETITION EQUITY — APPEAL PROM OWEN CIRCUIT COURT. 1. A judgment in an ordinary action can not be modified by an order in an equitable action, except for a defense arising or discovered subsequent to the rendition of judgment in the ordinary action. (Civil Code, sec. 17.) 2: A defense that could have been pleaded in an action before judgment is not afterwards available. (Dickinson v. Trout, 8 Bush, 444; Alexander v. Lewis, 1 Met., 409; Brown v. Scott, 2 Bibb, 635; Harrison v. Lee, 7 J. J. M., 172; Whitington v. Roberts, 4 Mon., 173; Brinck v. Wood, 43 Barb., 315; Bigelow on Estoppel,…
1Opinion of the Court
JUDGE BENNETT
delivered tiie opinion of the court.
Section 17 of the Civil Code of Practice provides: “A judgment obtained in an ordinary action shall not be annulled nor modified by any order in an equitable ■action, except for a defense which arises or is discovered after the rendition of the judgment. But such judgment does not prevent the recovery of any claim which was not, though it might have been, used as a defense by ■way of set off or counter-claim in the action.”
Macklin’s Executor, in the case of McCown v. Macklin’s executor, 7 Bush, 308, had recovered a common law judgment on two…
2Cases cited1 opinion
- McCown v. Macklin'sCourt of Appeals of Kentucky · 1870
3Cited by1 opinion
- Young v. BarnettCourt of Appeals of Kentucky (pre-1976) · 1935