
    Miller, et al. v. Sachs.
    (Decided January 18, 1924.)
    Appeal from Harlan Circuit Court.
    Judgment&emdash;Abuse of. Discretion to Overrule Motion to Set Aside Default Judgment, where Exhibits on which Based Not Piled.&emdash; Where the basis of plaintiff’s action were two exhibits said to have been filed therewith, and his petition does not purport to copy or use the language of either one of those exhibits, and plaintiff has never filed either one of them, and it appears that attorneys for defendants moved the court to require plaintiff to file with ■ his petition the exhibits referred to therein, the court abused his discretion in overruling motion to set aside default judgment.
    SAMPSON & SAMPSON for appellants.
    J. S. FORESTER and P. P. ACREE for appellee.
   Opinion op the Court by

Turner, Commissioner

Reversing.

In 1921 appellee, as plaintiff, filed his action against Miller, Blackman, Campbell and Leech, and alleged that on June 19, 1920,. he and Miller had entered into a written contract by which Miller agreed to construct for him a two-story brick store building in Harlan, Ky., according to certain plans and specifications attached thereto, for a specified sum, and to be finished within a named time. He then alleges that on the 23rd day of June, 1920, Miller, together with Blackman, Campbell and Leech as his sureties, executed and delivered to him their written contract whereby they undertook and bound themselves to the plaintiff that Miller as such contractor should faithfully perform his said contract and satisfy all claims and demands incurred for the same, and fully indemnify the plaintiff for all costs and damages he might suffer by reason of any failure of Miller to carry out his part of the contract, and to repay the plaintiff and make good any and all defaults of said Miller on account of any outlaying expenses incurred by the plaintiff upon the failure of Miller to carry out said contract, and if he failed to perform his. part of the same the defendants would pay to the plaintiff the sum of $5,000.00.

The petition says there is filed with it each of the two exhibits referred to therein, which are. the basis of the action, but in fact neither of such exhibits was filed. The plaintiff further alleges that Miller after starting the construction of the building, and after incurring certain expenses for labor and material, but before the building was even half constructed, abandoned the same and refused to perform or carry out his contract; and that by reason of said abandonment by Miller the plaintiff was required to take charge of the construction of the building and required to furnish certain labor and material to complete the same, and which cost him over and above the contract price more than $10,000.00. He then prayed for a judgment against defendants for $5,000.00.

Miller, Campbell and Leech were summoned, but Blackman appears never to have been before the court.

At the September term, 1921, the three summoned defendants were before the court, but there appears from the record no action taken during that term by any of the parties. At the January term, 1922, still no action was taken by either of the parties until the 29th day of the term, which was on the 3rd day of Februáry, 1922, at which time a default judgment was taken against Miller, Campbell and Leech. On the next day, and during the same term, those three defendants appeared and filed the affidavit of George G. Lewis, and moved the court to set aside the default judgment, and at the same time tendered an answer for Campbell and Leech.

The court overruled the motion to set aside the default judgment, and from that judgment this appeal is prosecuted.

The affidavit of the attorney states he had been employed by Campbell and Leech to defend the action, and that at the September term of the court he moved the court to require tbe plaintiff to file with his petition tbe contract and bond referred to therein, and be states in tbe affidavit that tbe defendants bad no copies of these papers. Tbe affiant also says that be bad that day discovered for tbe first time that no order bad been entered in tbe case showing bis motion at tbe September term, and that tbe defendants bad a valid defense to tbe action, but in order to plead the same must have access to the contract and bond which are tbe basis of tbe plaintiff’s action. Tbe answer filed for Leech and Campbell appears to present a good defense to tbe action, but in our view of tbe matter it is unnecessary to determine that question.

Tbe two exhibits were tbe basis of tbe action, and tbe petition does not purport to copy or use tbe language of either of those exhibits, and tbe plaintiff has neved filed either of them. In as much as tbe exhibits were tbe basis of tbe action, and it was tbe duty oftbe plaintiff to file them,- it appears that tbe only default, or at any rate tbe first default, was upon tbe part of tbe plaintiff in failing to file them. It is easily understandable that tbe defendants who bad no copy of them would be at a great disadvantage in undertaking to plead any defense they bad, before they were filed.

Under tbe facts as presented, tbe lower court abused its discretion in overruling tbe motion to set aside tbe default judgment. Tbe obligation, so far as we may determine without tbe exhibits before us, was a joint one, and as tbe default was upon tbe part of tbe plaintiff in bis failure to file tbe exhibits, tbe motion should have been sustained. Southern Ins. Co. v. Johnson, 140 Ky. 485; Thompson v. First National Bank, 183 Ky. 69.

No other question is decided.

Tbe judgment is reversed with directions .to sustain tbe motion, set aside tbe default judgment, permit tbe defendants to file answer, and for further proceedings.  