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of the fact that no question is raised as to Co., 74 Ga. 397; Burnham v. Stratford Co.
the Validity of this service, we may assume that Fred Perkins, as the bookkeeper of the Imperial Jellico Coal Company, was a proper person on Whom to serve process against this company. So that the only question is, Did the court commit error in sustaining a demurrer to the plea of limitation interposed as a defense? Of course a corporation can legally have only One name, and that must be the name given to it in its articles of incorporation, and by and in that name it is authorized to Conduct the business for Which it was created. If it brings a suit, it must be brought in its designated name; and, likewise, when it is Sued, it should be sued by such name. But in the case we have the suit was against the Imperial Coal Company, and the negligence charged attributed to that company, When as a matter of fact the plaintiff at the time he sustained the injuries complained of was an employé of the Imperial Jellico Coal Company, and his cause of action Was against that company, and not against the Imperial Coal Company, which was an entirely different and distinct corporation, if indeed there was any such corporation. It is true the summons on the petition against the Imperial Coal Company Was executed on an authorized agent of the Imperial Jellico Coal Company, but this fact does not help the case for the plaintiff, as the Imperial Jellico Coal Company Was not Sued or before the court until after the amended petition was filed and summons issued thereon. But the error in omitting from the petition the Word “Jellico” and Styling the Suit an action against the Imperial Coal Company, instead of against the Imperial Jellico Coal Company, was not, in View of the admitted fact that the Imperial Jellico Coal Company Was the name of the company for Which the plaintiff Was Working When injured and the name of the company which he intended to sue, so substantial as to affect the sufficiency Of the petition as the COmmencement Of an action against the Imperial Jellico Coal Company. It is provided in section 134 of the Code that: “The court may, at any time, in furtherance of justice, and on such terms as may be proper, cause or permit a pleading or proceeding to be amended, by adding or striking out the name of a party; or, by correcting a mistake in the name of a party, or a mistake in any other respect. * * * The court must, in every stage of an action, disregard any error or defect in the proceedings, which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”
And we think this section of the Code affords us ample authority to disregard as immaterial the error in giving the incorrect name of the corporation intended to be Sued, and that When the amendment was filed correcting this error, the amendment related back to and became a part of the original petition. Johnson v. Central R. R.
Savings Bank, 5 N. H. 446; Lane V. Seaboard R. R. Co., 50 N. C. 25; Dixon v. Melton, 137 Ky. 689, 126 S. W. 358, Ann. Cas. 1912A, 457; Teets V. Snider Heading Mfg. Co., 120 Ky. 653, 87 S. W. 803, 27 Ky. Law Rep. 1061. In the case of Geneva Cooperage Company V. Brown, 124 Ky. 16, 98 S. W. 279, 30 Ky. Law Rep. 272, 124 Am. St. Rep. 388, the Geneva Cooperage Company was sued as a Corporation When in fact it was a partnership, and it was held that the commencement of the action against the corporation was not the commencement of an action against the individual owners so as to suspend the running of the statute of limitation against them. A like conclusion was reached under Similar facts in the case of Leatherman V. Times Co., 88 Ky. 291, 11 S. W. 12, 10 Ky. Law Rep. 896, 3 L. R. A. 324, 21 Am. St. Itep. 342. But in each of these cases the amendment tendered after the statute of limitation had run against the original defendant Was a Substantial departure from the cause of action Set up in the Original petition. In each case the suit was against a Corporation, while the amendment undertook to commence an action against individuals. In the case We have the Suit Was against a Corporation, and the Only error committed Consisted in incorrectly designating the name of the corporation which was the real defendant intended to be, and that was, in truth, Sued. The instructions are also complained of, but we think they submitted with substantial fairness the issues made by the pleadings and supported by the evidence.  It is complained that the damages are excessive, and we think this ground for reVersal is Well founded. The appellee received a shock by coming in contact with an electric Wire carrying 250 volts. The wire had been attached to a WOOden post, but the post had rotted, letting the Wire Sag, so that when the appellee went to turn a switch, the Wire Struck his forehead and knocked him down; but in a little while he was able to go back to his work, which was not heavy. The appellee testified that the mine Was idle the day following the accident, but he worked the two succeeding days, and then quit and Went home, where he was confined to his bed about three Weeks; that the muscles in One of his hands Were drawn SO that he could not straighten his fingers; that he also suffered with pains in his head and neck; that he had lost a little flesh, Was also afflicted With nervousness, and the nails on his fingers and toes came off. A number of Witnesses, Whose StatementS Were not COntradicted, testified for the coal company, and said that if a person came in contact, in the manner appellee did, With a wire carrying 250 Volts, it might Stun him for a little While and knock him down, but would not leave any bad after effects. The three doctors who attended appellee when he was confined to his bed for SOme three Weeks after the accident, and who saw him after this When he Was going about, said that he had malaria and rheumatism and, in effect, that the injuries of which he complained were not attributable to the shock he received, but to other causes. No Witness WaS introduced by appellee Who Said that an electric Shock Such as he sustained Would produce the injuries, or any of them, he was suffering or had Suffered With.
Under these circumstances, we think the verdict grossly excessive. If the nervous and physical conditions testified to by appellee were attributable directly to the electric shock, the verdict would not be excessive, but the evidence fails to COnnect these COnditionS With the ShOCk.
The judgment is reversed, with directions for a new trial.
STONE V. DANIELS. (Court of Appeals of Kentucky. Nov. 16, 1915.)
1. JUDGMENT ©:17-PROCESS ON AMENDED PETITION.—SUIT. Under Civ. Code Prac. § 135, providing that if a plaintiff, having a lien for a debt due and a debt not due upon property which he seeks to subject thereto, states both claims in his petition, he may, upon suggestion of record that one of them has become due pendente lite, have judgment for a sale of the property therefor, plaintiff, whose petition in an action to enforce a vendor's lien note alleged a cause of action on other notes not then due, was entitled to a judgment on the notes maturing after the petition was filed, without other process. [Ed. Note.—For other cases, see Judgment, #. Dig. §§ 25–33, 157, 422; Dec. Dig. G->
2. VENDOR AND PURCHASER Q->274—ACTION
ON LIEN NOTE-DEFENSES.
In an action to enforce a vendor's lien
note, stating a cause of action on other notes not then due, an answer, alleging the vendor's misrepresentations as to the acreage of the tract relied upon by the purchaser, and that part of the tract was in the actual adverse possession of other owners, if tendered in time, would set up a good defense.
[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 769–771; Dec. Dig. &:274.]
3. JUDGMENT 3:138--SETTING ASIDE—DILIGENCE. Where suit to enforce a vendor's lien was pending more than a year before final decree, and defendant had been allowed time to file an answer and had announced that he had no defense to make, a tendered answer, filed with a motion to set aside the decree, which did not aver that by the exercise of reasonable diligence a deficiency in the land, alleged in such answer, could not have been discovered before final decree, and which showed that part of the tract was in actual adverse possession of other parties at the time of the purchase, failed to show the exercise of proper diligence. [Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 249-251, 254; Dec. Dig. 3-138.]
Appeal from Circuit Court, Bell County. Action by John W. Daniels against Maggie Stone. Judgment for plaintiff, and from an
Order refusing to set aside the judgment and to allow a pleading to be filed, defendant appeals. Affirmed.
Metcalf & Jeffries, of Pineville, for appellant. A. G. Patterson, of Pineville, for appellee.
CARROLL, J. In February, 1913, the appellant bought from the appellee a tract of land for the agreed consideration of $3,500. TWO thousand dollars of this Sum Was paid in Cash, and for the remainder of the ConSideration three notes Of $500 each Were executed, payable in 6, 12, and 18 months from the date of the conveyance. The first note fell due in August, 1913, and in September following the appellee brought suit, in which he averred that:
“As part consideration for said land defendant, on February 14, 1913, executed and delivered to plaintiff her three notes for the sum of $500 each, whereby defendant promised and agreed to pay him $500 6 months after date thereof, $500 12 months after date thereof, and $500 18 months after date thereof, all of said notes bearing 6 per cent. interest from date, and made negotiable and payable at the First State Bank at Pineville.”
It WaS further a Verred that a lien WaS retained to Secure the payment of all the notes, that no part of the note first due, or of the other notes, had been paid, and that there Were n0 Other liens On the land, and that it could be divided without materially impairing its value. Summons on this petition issued, and Was executed in due time, and at the September term, 1913, of the Bell circuit court the defendant, by Baker & Rawlins, her attorneys, filed a demurrer to the petition, which was overruled, and, no answer or other pleading being filed by the defendant, there Was a judgment. On the note at the December term, 1913, and an Order directing enough of the land sold to pay the judgment. In February, 1914, at Which time the judgment had not been executed, the plaintiff filed in court an amended petition, setting out that the Second note Was due and unpaid, and he prayed for judgment for the amount Of the note and for a sale of SO much of the land as might be necessary to Satisfy it. Thereupon there Was a judgment in conformity to the prayer of the petition. On November 11, 1914, it appearing that the last note had become due, and that the judgment. On the Other tWO notes had not been executed, another amended petition was filed, asking for a judgment on the third note, and a sale of the land to Satisfy the Same. This last judgment was entered on November 23, 1914. In December, 1914, the defendant, by Metcalf & Jeffries, her attorneyS, made a motion to set aside the judgment, and offered to file an answer, Set-Off, and counterclaim, to which the plaintiff objected. The Court Sustained the objection and refused to allow the pleading to be filed, for the reason, as set out in the order, that the defendant Was given, at the time the second and amended petition was filed on November 11, 1914, until November 14th to file her answer, at which time counsel for defendant announced in open court that she had no defense to make, and agreed that judgment should be entered, which was accordingly done. From the order refusing to set aside the judgment and to allow the pleading to be filed, this appeal is prosecuted. The tendered pleading set out, in Substance, that the plaintiff was a nonresident of the state, and that when the conveyance was made he represented that the tract of land conveyed contained 100 acres, and the defendant relied on these representations, and Would not have purchased the land at the price named except for the fact that she believed the tract did contain 100 acres. She further averred that since November 14, 1914, she discovered for the first time that the tract contained Only 78 acres, and that 8 acres of this 78 Was in the actual adverse possession of other owners of the land at the time of her purchase in February, 1913, and she asked that she be allowed to set off the value of this deficiency, namely, $1,050, against the notes sued on.  It is suggested in argument for appellee that the judgments on the last two notes were void because no process Was issued on the amended petition, seeking judgment on these notes, and the defendant was not before the court. But this contention is not well founded. Section 135 of the Civil Code provides, in part: “If a plaintiff, having a lien for a debt due and a debt not due upon property which he seeks to subject, state both claims in his petition, he may, upon a suggestion of record that one of them has become due pendente lite, have judgment for a sale of the property therefor.” The plaintiff set up in his petition a cause of action on all of the notes, and as the defendant was summoned to answer the petition, the plaintiff was entitled to a judgment on the notes maturing after the petition was filed, without other process. Moshell v. Reed & Wilcox, 97 S. W. 372, 30 Ky. Law Rep. 10. [2, 3] The answer sets up a good cause of action, but we think it was tendered too late. The defendant Was Summoned and was represented by attorneys in 1913, and the tendered pleading does not disclose any reason why she could not then have ascertained the deficiency in the land, Or have made the defense set up in the tendered pleading. It is true the tendered pleading aVerred that: “Since the last supplemental judgment herein rendered at the present term of court, and within less than a week prior to the filing of this answer, set-off, and counterclaim, she has for the first time learned and discovered that the said tract of land described and attempted to
be conveyed in the said deed contains a total gross area of 78 acres, and no more.”
But there is no averment that by the exercise of reasonable diligence this deficiency COuld not have earlier been discovered. The pleading does not disclose any reason for the delay, except the naked allegation that she learned Of the deficiency only about a Week before the tendered petition was filed. Why She could not have learned Of it Sooner does not appear.
Aside from this, the tendered pleading shows that 8 acres of the land Was in the actual, adverse possession of other claimants, holding the same under Superior title at the time of her purchase of the land in 1913, and Certainly She knew this fact at the time She was before the court by her attorneys in 1913. It seems to us that the effort of the defendant was to delay the execution of the judgment.
If the defendant has a meritorious claim against the plaintiff, she may assert it in a separate action, if She can aver and establish by evidence sufficient facts to excuse her delay in not setting up her defense in SeaSonable time.
The judgment is affirmed.
HATFIELD'S ADM'R. V. HATFIELD. (Court of Appeals of Kentucky. Nov. 17, 1915.)
1. APPEAL AND ERROR 3:5837—REVIEW-SUFFICIENCY OF EVIDENCE—INADMISSIBLE EVIDENCE. Where inadmissible testimony was unobjected to, it must be allowed to stand for what it is worth, on appeal, as part of the evidence of the party whom it favors. [Ed. Note.—For other cases, see Appeal and E£, Čent. Dig. "# 3262:3272, 3274-3377, 3289; Dec. Dig. 3:837.]
2. ISILLS AND NOTES @:493—PRESUMPTIONCoNSIDERATION FOR CHECK. In the absence of proof to the contrary, the presumption will be indulged that a paid check was executed for valuable consideration. [Ed. Note.—For other cases, see Bills and #" Cent. Dig. §§ 1652–1662; Dec. Dig. Q:
3. BILLS AND NOTES @:518—CONSIDERATION —SUFFICIENCY OF EVIDENCE. In an administrator's action on a note found among decedent's papers, the claim being that the note, made by decedent's grandson to pay for land, was indorsed in blank to decedent, when the vendor of the land was paid with decedent's funds, evidence held sufficient to support the chancellor's judgment for the grandson that the decedent's payment by check to him was in return for his surrendering the unexpired term of his lease of decedent's land, which decedent wished to sell. [Ed. Note.—For other, cases, see Bills and # Cent. Dig. §§ 1816–1820; Dec. Dig. 8: 51S. 4. APPEAL AND ERRoR <>837—REVIEW-ERRoR WAIVED FOR DELAY OF COURT-ERRONEOUS ADMISSION OF EVIDENCE. - - Under Civ. Code Prac. § 589, providing that errors of the court in its decisions upon exceptions to depositions are waived, unless excepted to, where appellant filed exceptions below to all the depositions taken and filed by the appellee, but the court failed to pass on such exceptions, and was not asked to do so, appellant's contention that, as appellee was incompetent as a witness, his testimony on former trial, embodied in a deposition, must be wholly disregarded by the court on appeal, was invalid, since, no objection having been pressed to the testimony, error in its admission was waived. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3262—3272, 3274-3277, 3289; Dec. Dig. G->837.]
Q->For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Appeal from Circuit Court, McLean County.
Action by Thomas Hatfield's administrator against W. R. Hatfield. Judgment for defendant, and plaintiff appeals. Affirmed.
L. P. Tanner, of Owensboro, for appellant. Richard Alexander, of Calhoun, and Little & Slack, of Owensboro, for appellee.
SETTLE, J. Thomas Hatfield died, intestate, in the month of March, 1913, domiciled in McLean county. Thereafter the appellant, John E. Cowgell, was appointed and duly qualified as the administrator of his estate. Following his appointment as such administrator, he found among other notes and papers that had been left by the decedent a note Which had been executed by his grandSon, the appellee, W. R. Hatfield, December 23, 1910, to one E. W. Tucker, upon the back Of Which the name of the payee was written, but above which there were no words indicating a Sale Or assignment Of the note. SubSequently the administrator brought this action upon the note seeking its recovery of the appellee, alleging that after its execution to Tucker by the latter Tucker Sold and assigned it to the decedent, Whereby he became the owner thereof, and, further that the note was due and wholly unpaid. It was also alleged in the petition that the note Was executed by appellee to E. W. Tucker in part payment for a 75-acre tract of land in McLean county, which the latter by deed of date of December 23, 1910, conveyed to him, and that the deed retained a lien upon the land to secure the payment of the note. By the prayer of the petition judgment was asked for the amount of the note, with 6 per cent. interest from January 4, 1911, and for the enforcement of the lien by a sale of the land, or enough thereof to pay Same.
Appellee's answer denied that the note had been sold or assigned the decedent by Tucker, also denied the decedent's former ownership thereof, and pleaded its payment by appellee to Tucker.
The appellant then filed an amended petition, in which it was, in substance, alleged that the decedent, while sick and infirm, had furnished appellee the money with which to pay the note, by giving him a check for the amount thereof, under an agreement with him that Tucker would indorse or assign the note to the decedent, which, it was alleged, had been done, and by the prayer of the amended petition a recovery was sought against appellee upon the check, if not to be had on the note, With 6 per cent. interest
from January 4, 1911, and for the enforcement of a lien upon the land for its payment. By his answer to the amended petition appellee traversed its averments, and alleged that the check of $1,000 he had received from the decedent and applied to the discharge of the note in question was a payment for the delivery to the decedent of the possession of a farm he had leased of him, and for improvements appellee had made thereon, which farm, as further alleged, he had leased from the decedent for a term of three years, but the possession of which, at the expiration of the first year thereof, he had, at the decedent's request and upon his promise to pay him therefor the $1,000 mentioned, redelivered to him. * The affirmative matter in the tWO anSWerS was controverted of record, and, following the taking of proof by depositions and submission of the case, the circuit court rendered judgment dismissing the appellant's petition and allowing appellee his costs. From that judgment, the former has appealed. The following facts appearing in the record are undisputed: E. W. Tucker conveyed to the appellee, W. R. Hatfield, by deed of December 23, 1910, a 75-acre tract of land in McLean county, the consideration being $1,800 of which $260 was paid in cash, and notes were executed by appellee to Tucker for the remainder, in the several months, and payable as follows: $1,000 January 4, 1911; $190 January 20, 1911; and $350 January 10, 1912—these notes being secured by a lien retained by the deed on the land. The payment to Tucker Of the several notes mentioned and the release of the lien retained as security for their payment is shown by the following entry appearing on the margin of the deed as recorded in the Office of the clerk of the McLean county Court: “The notes described in this deed have been paid in full. The lien on property is hereby released. This 12th day of February, 1912. “[Signed] E. W. Tucker. “Attest: John R. Priest, Clerk, “By John E. Cary, D. C.”  The only evidence introduced by the appellant was furnished by the depositions of himself, E. W. Tucker, and C. W. Thomasson. Appellant merely testified that the note had been found by him in the Bank of Livermore among certain other papers of the decedent, and that he had no knowledge as to the latter's ownership of it, other than the presumption arising from its being among his papers. C. W. Thomasson, cashier of the Bank of Livermore, testified that the check of the decedent for $1,000, of date January 1, 1911, payable to appellee, was brought by the latter to the bank, there indorsed by him, and the proceeds deposited to his Credit January 5, 1911, and that appellee then drew his check on the bank for $1,000, which he gave to Thomasson, with the direction that he deliver it to Tucker When the latter presented the note, which he (Thomasson) did later On the same day, and received from Tucker the note, and that, following the delivery of the check to Tucker, the same was charged to appellee's account. ThomasSOn further testified that during the last few years of his life the decedent had left notes and other Valuable papers in the bank for safe-keeping, but that he had no recollection of delivering the $1,000 note to decedent after its payment by appellee, or of any direction from the decedent to place it among his papers; nor did either appellee or Tucker direct him to place it among the papers of the decedent. In this connection it is proper, however, to call attention to the following Question asked ThomassOn, and his anSWer thereto : “Q. State whether or not, if the said E. W. Tucker left said note at said time, you would have placed same with the papers of Thomasson, unless you had been ordered to do so by the parties interested at that time. A. I certainly would not.” The incompetency of the question and answer is patent, the one calling for the witness' belief as to the probability, of his action On the state of case suggested, and the other amounting to a mere expression of the Witness’ Opinion as to what he might have done under Such Circumstances. But, as the recOrd does not disclose that the question Or anSwer was objected to by appellee, it must be allowed to stand, for what it is worth, as a part of the appellant's evidence. Tucker testified that both the decedent and appellee had informed him that the former would furnish the latter $1,000 to pay On the land sold appellee by Tucker, but that neither of them had advised him. Whether the money would be furnished by the decedent as a loan, gift, or payment, and that he had not been requested by either of them to assign the note to the degedent for any purpose; that all he did was to take the note to the bank January 5th for payment; and that when he got to the bank the cashier delivered to him the individual check Of appellee, which had been left there by him, and upon its receipt he indorsed the note in blank and left it with ThomassOn. It will be observed that the only thing appearing in the evidence referred to as conducing to show the decedent's ownership of the note is the presumption arising from the fact that it was found after his death among his papers. The evidence wholly fails to show how or when it got among his papers for what purpose it was placed there, or even that its presence among his paperS Was ever known to him. Although the decedent lived more than two years after the payment of the note by appellee, it does not appear that he mentioned the note to any One during that time or that he claimed to be the OWner of it. He also lived more than a year after the release of the lien made upon the deed book in the clerk's office by Tucker, Which release Contained an acknowledgment
Q-> For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
of the payment of all the notes appellee had given for the land conveyed him by Tucker; yet, with the implied notice of such release, no complaint was made by the decedent that the release of the lien as to the $1,000 note was unauthorized.  The most than can be claimed for appellant's evidence is that it only inferentially shows the decedent's possession of the note at the time of his death. It is, however, Contended by appellant that, if not entitled to recover upon the note, he is entitled to recover upon the check. This contention rests upon the theory that the presumption should be indulged that the amount of the check was a loan, and that this presumption casts upon appellee the burden to Show itS COnsideration. The contention is manifestly unsound, for ordinarily, in the absence of proof to the contrary, the presumption Will be indulged that a paid check was executed for a Valuable consideration, and in this case the evidence of appellant falls short of destroying that presumption.  It now becomes necessary to consider the evidence introduced in behalf of the appellee. It appears from appellee's own testimony that the check in question was given for a Valuable consideration; that he had rented from the decedent for a term Of three years a farm owned by the latter, upon Which he had at his OWn expense built new fences, made repairs upon the buildings, and, by the sowing of timothy, otherwise improved the land; that at the end of the first year of his tenancy the decedent conceived the idea of selling the farm, in order to do Which it Was necessary for him to Cancel the remaining two years of the lease, which could not be done without the appellee's consent; and that in Order to regain the possession of the farm at the end of the first year of the lease, and to pay appellee for the improvements he had put upon the place, the decedent agreed to pay him the Sum of of $1,000, which sum Was, in fact, paid appellee in the check that the latter applied to the discharge of the note of $1,000 executed to Tucker on the land Tucker Conveyed him. Appellee further testified that the $1,000 thus paid Tucker fully discharged the note due January 5, 1911; that it Was not placed with other papers of the decedent with his knowledge or consent; and that he did not himself get possession Of the note When it was paid by him, because ThomassOn, the cashier of the bank, did not then have it, and, While he was unable to recall that he made of Thomasson any request to deliver to him the note the latter received from Tucker, he was, nevertheless, entitled to its possesSion after its payment, and expected that it would be delivered to him. C. H. Salmon, introduced in appellee’s behalf, testified that he knew appellee had leased of the decedent, his grandfather, a farm for the term of three years, that about