Wharton v. Cole

Jack WHARTON v. Mattie Hays COLE

Wharton v. Cole, 374 S.W.2d 498 (Ky. Ct. App. 1964)

Court: Court of Appeals of Kentucky · State Appellate Courts
Decided: January 17, 1964
Judges: Montgomery
Citations: 374 S.W.2d 498

Cited by 6

Opinion of the Court — Montgomery

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MONTGOMERY, Judge.

Jack Wharton and the City of Barbour-ville appeal from a judgment in favor of Mattie Hays Cole by which they are permanently enjoined from doing certain acts. Appellants question the authority of the court to render a judgment without notice of the hearing and without giving them an opportunity tp .be heard.

On August 17, 1961, appellee sued to enjoin appellants from doing certain acts in connection with property on the floodwall constructed at Barbourville. The rights of the parties under a deed of easement are involved. A restraining order was issued upon the filing of the complaint. On September 5, 1961, appellants answered and asserted an affirmative defense. The case remained in this status until judgment was entered on June 4, 1963.

Appellants contend that the court had no authority to render a judgment in the absence of notice of the hearing to appellants. Appellee does not contest the lack of notice, but she seeks to justify or excuse it.

CR 40 provides:

“No case shall be assigned for trial without giving reasonable notice to all parties not in default of the day on which a trial date will be fixed.”

It is an elementary essential of a judicial proceeding that notice of a hearing shall be given an adverse party. This principle is inherent. The burden is upon the court, or a litigant wishing his case assigned for a hearing or trial, to make sure that a party who might possibly object is notified. Clay, CR 40, Comment 3. Burns v. Brewster, Ky., 338 S.W.2d 908 ; Ledford v. Osborne, Ky., 350 S.W.2d 641 . The entry of the judgment herein without notice of a hearing was in error.

Neither KRS 23.150 nor CR 6.03(2), cited by appellee, justifies the action taken. The argument made by appellee that the error in granting the judgment was harmless is frivolous. It is'unnecessary to discuss the second contention urged by appellants.

Judgment reversed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 6 cases

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Relies on it most ⓘ

State Farm Mutual Automobile Insurance v. Peller578 N.E.2d 874 (Ohio Ct. App. 1989)
Ries Flooring Co. v. Dileno Construction Co.373 N.E.2d 1266 (Ohio Ct. App. 1977)
Wiley v. Adkins48 S.W.3d 20 (Ky. 2001)
Commonwealth, Department of Highways v. Stamper424 S.W.2d 821 (Ky. Ct. App. 1967)
M. S. S. Enterprises, Inc. v. Louisville Gas & Electric Co.445 S.W.2d 425 (Ky. Ct. App. 1969)
Wharton v. Cole453 S.W.2d 741 (Ky. Ct. App. 1970)

Most recent

Wiley v. Adkins48 S.W.3d 20 (Ky. 2001)
State Farm Mutual Automobile Insurance v. Peller578 N.E.2d 874 (Ohio Ct. App. 1989)
Ries Flooring Co. v. Dileno Construction Co.373 N.E.2d 1266 (Ohio Ct. App. 1977)
Wharton v. Cole453 S.W.2d 741 (Ky. Ct. App. 1970)
M. S. S. Enterprises, Inc. v. Louisville Gas & Electric Co.445 S.W.2d 425 (Ky. Ct. App. 1969)
Commonwealth, Department of Highways v. Stamper424 S.W.2d 821 (Ky. Ct. App. 1967)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

Depth	Case	Cited by
	Burns v. Brewster, 338 S.W.2d 908 (Ky. Ct. App. 1960)	5
	Ledford v. Osborne, 350 S.W.2d 641 (Ky. Ct. App. 1961)	3

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