Cooper v. Douglas

Opinion op the Court by Judge Dietzman Affirming. This action, which we shall call suit No. 3, was brought under section 518 of the Civil Code of Practice to set aside a judgment in an action, which we shall call suit No. 2] which was also brought under this section 518 of the Code to set aside a judgment in an action, which we shall call suit No. 1, wherein the appellee was confirmed in his title to property which he had bought in a *788 judicial sale had in suit No. 1. Waiving all questions except the sufficiency of the allegations of the petition as amended in suit No. 3 to support the relief sought therein, we are confronted with the inescapable proposition that such allegations were totally insufficient for that purpose. In his petition as amended in suit No. 3, the plaintiff, now appellant, averred that a demurrer had been sustained to his petition in suit No. 2 at a summer 1932 term of the McCreary circuit court, and he was given until the November, 1932, term of that court to amend; that his attorneys in this suit No. 2 were the firm of Denton & Perkins of Somerset, Ky.; that thereafter and in August, 1932, Judge Denton of that firm died, and that he relied on the surviving member, the Honorable John Perkins, to properly attend to this suit No. 2, and to prepare and file an amendment at the November, 1932, term of the McCreary circuit court, but that Mr. Perkins failed to do this, for which reason no amendment was filed, and that because of such failure suit No. 2 was thereupon dismissed; that this dismissal was thus brought about by the unavoidable casualty and misfortune of plaintiff in that his lawyer had not properly attended to his case for him. It was to set a,side this dismissal of suit No. 2 that this suit No. 3 was instituted. It is well settled that the neglect of counsel is not an unavoidable casualty or misfortune warranting the granting of a new trial. McCommas v. McCawley, 228 Ky. 263, 14 S. W. (2d) 1057; McGuire v. Mishawaka Woolen Mills, 218 Ky. 530, 291 S. W. 747; Dow v. Pearce, 217 Ky. 202, 289 S. W. 245; Prater v. Campbell, 110 Ky. 23, 60 S. W. 918, 22 Ky. Law Rep. 1510. It follows that the lower court did not err in dismissing plaintiff’s petition as amended in this suit No. 3. Judgment affirmed.