
    Case 2—Action by J. A. Barlow and Another against the City of Lexington, the Home Construction Company and others, to test the Validity of an Ordinance
    Nov. 22.
    City of Lexington v. Home Construction Co. and Others.
    APPEAL FROM FAYETTE CIRCUIT COURT.
    Judgment Dismissing Petition and tiie City of Lexington Appeals.
    Dismissed.
    Pleading — Delay in Tendering Answer — Right of Defendant to Appeal as against Co-Defendant.
    Held: 1. In an action against a city and others to test the validity of an ordinance, it was not an abuse of discretion to refuse to permit -the city to file an answer eleven months after the petition was filed, and after issues had been formed between the plaintiffs -and another defendant, and the case submitted by .agreement; no sufficient reason being shown why the answer was not tendered sooner.
    •2. A defendant who has not filed an answer can not prosecute an .appeal, as against a co-defendant, from a judgment dismissing the petition against both.
    W. S. BRONSTON, Attorney for appellant.
    J. A. Barlow, as a taxpayer and as a representative of all other taxpayers, sought to enjoin the general council, the City ■of Lexington, the mayor and the city solicitor from making a contract with the Home Construction Company for a term of four years, for spreading cracked rock, etc., on the streets of Lexington.
    This controversy began in July, 1899, soon after the pretended passage of- the joint resolution accepting the bid of the Home Construction Company, and asking the mayor and city solicitor to make a contract with it. A temporary injunction was granted by the lower court to J. A. Barlow, after proper bond had been -executed, and the contest with -the Home Construction Company continued until May, 1900, when -the court gave its final decision; and at or about which time the city of Lexington, through its mayor and city solicitor, offered to file an answer which was refused by the court. And from this. judgment of the court, declining to permit the city to file said answer, .this appeal is taken.
    The present mayor and city solicitor did not come into office until January 1, 1900; this suit had been pending since July, 1899, and this answer was tendered in May, 1900. There is no reason why the city should have answered sooner, while the pleading between Barlow, &c., and Barkley, &c., had not been completed, and from January 1, 1900, until May, 1900, the record in the case was the most of the time in the hands of the circuit judge for the purpose of having him pass upon the questions involved in the case. It is the duty of the mayor and city solicitor to make a contract with the Home Construction Company according to the terms of the pretended joint resolution which was attempted to be passed by the general council of the city, and not only as a personal right, but as representatives of the city taxpayers, they have a right to have the courts pass upon the legal phases of the joint resolution, under which they will have to act.
    Every question raised by the answer is one of law and not of fact. There could have been no delay, no inconvenience, for the court could have decided every point by the following morning.
    We claim that the pretended joint resolution authorizing the contract aforesaid was never legally passed by the council, and upon this question we desired the advice of the court before approving it as city officials, and for this reason offered the answer which the court refused to permit us to file, and for this reason we appeal from the judgment aforesaid.
    AUTHORITIES CITED.
    Kentucky Statutes, secs. 3063, 3110, 3136, 3046, 3059, 3071, 3058, 3069 3070; Constitution, sec. 157; City v. McKenna, 99 Ky., 508; Beard v. City, 95 Ky., 239; Same v. Same, 15 Ky. Law Rep., 756; Knipper v. City of Covington, 22 Ky. Law Rep., 676.
    GEO. C. WEBB, • ATTORNEY TOR APPELLEE, HOME CONSTRUCTION COMPANY.
    The record shows that the suit was filed July 11, 1899. Summons against City of Lexington served July 18, 1899. On August 1st, the cause was argued by city solicitor, and demurrer filed by the city.
    Appellee filed answer 3 uly 25th, and on September 25th moved to submit for judgment. The motion was concurred in and submission requested 'by the city, and motion objected to by plaintiff. On January 15, 1900, appellee again moved to submit, which was again refused. On February 26th, plaintiff took a ■rule against the city to show cause why it did not answer. On April 16th, appellee again moved to submit, and again the court refused to do so. On May 28, 1900, the cause was finally sub mitted upon the proof and pleadings. '
    Om June 11th, just eleven months after the suit had been instituted, the city for the first time offered to file answer, and filed affidavit of its city solicitor in support of it. During all his time the plaintiff had filed the petition, four amended petitions, a reply and an amended reply, besides numerous motions, upon all of which the court ruled as shown by the record.
    This court, in a continuous line of cases, has held that the lower court could exercise a discretion in regard to the filing ■of pleadings, which ought not to he interfered with unless palpably abused.
    We further submit that the paper, offered to he filed, is not an ■answer. It does not attempt to set up any defense to the cause of action alleged by the plaintiff. It assumes the same attitude on behalf of .the taxpayers as the petition of plaintiff, and yet it is not made a cross-petition against the construction company. The court had the right to consider it was not a good pleading, and not entitled to be filed, and so we submit that, on account of the anomalous character of the pleading, the court was justified in refusing to allow it to be filed.
    AUTHORITIES CITED.
    1. The trial court is vested with the fullest .discretion as to permitting pleadings to- be filed out of time. Bank U. S. v. Carroll, &e., 4th B. Monroe, p. 46; Spurr v. Batchelor, 19 Law Rep., p. 1641.
    2. A defense must be filed by the defendant within twenty days after service of summons. Act Creating Courts .of Continuous Session, Carroll’s Code, secs. 996, 1003, 1004.
    3. The language of the’ Constitution must he construed in the ordinary and common acceptation. Belknap v. City of Louisville, 18 Law Rep., 319.
    
      4. In order to avail a party of a Constitution or a statutory prohibition, the pleading must state facts bringing it absolutely within the requirements of .the statute or Constitution. Board of Education v. General Council of the City of Covington, 20th Law Rep., p. 289.
   Opinion op the cotjbt by

JUDGE WHITE

Dismissing the Appeai,.

This action was brought by J. A. Barlow and another, citizens ’and taxpayers of Lexington, seeking to test the validity of an ordinance or resolution passed by the general Gouncil awarding a contract with the appellee, Home Construction Company. The city of Lexington, the Home Construction Company, the members of the general council, and the mayor and the city solicitor, were all made parties defendant. The action was filed July, 1899, within a few days after the ordinance or resolution was passed, and its validity is questioned for various reasons, not necessary here to mention, A temporary injunction was granted by the'circuit judge? To this petition a demurrer was filed by the city solicitor, and a motion to make more specific by some of the defendants. The Home Construction Com.pany filed answer and amended answer, which may be said to deny every material allegation in the petition. In September, 1899, the cause having been placed on the trial docket, the defendant, Home Construction Company, asked that it be submitted. This was refused upon objection being made, and an amended petition was permitted to be filed. In December, a demurrer to the amended petition was sustained, and another amendment was filed. In January, 1900, a demurrer was sustained to the petition as amended, and the Home Construction Company again moved a ' submission. In February, 1900, the plaintiffs tendered a fourth amended petition, and asked a rule against the city of Lexjngton to show cause why the petition should not be confessed as to it. In April, the fourth amended petition was refused to be. permitted to be filed, and the Home Construction Company again asked that the cause Ibe submitted, which was denied, and the plaintiffs given permission to file a reply to the answer. A demurrer was sustained to the reply, and again to the reply as amended. In May, 1900, the cause was submitted by agreement. On June 11,1900, the city of Lexington tendered, and asked permission to file, its answer, in which are pleaded ail the various steps taken in the passage of the resolution in question. This answer contains a prayer for a judgment as to the validity of the resolution. In July, 1900, the court refused to permit this answer of the city to be filed, and, on hearing under the submission, dismissed the petition of Barlow, etc. The city prosecutes this appeal, and the only party appellee is the Home Construction Company, its co-defendant in the court below.

The only question presented by appellant, city of Lexington, is the action of the trial court in refusing to permit it to file answer. It will be noticed that this ansiwer was tendered eleven months after the petition was filed, and after issues had been formed, and ¡proof taken by the plaintiffs and the Home Construction Company, and after the case had been submitted by agreement. No sufficient reason is shown why the answer was not filed sooner. True, the attorney who signs the answer is not the same that is sued as city solicitor;,but the new officers went into office in January, 1900, and no sufficient reason is shown why the answer was not filed before the submission in May. From the whole record, we can not say there was an abuse of discretion in refusing to permit the answer to be filed at the time it was presented. The question then presents itself, what right has a defendant to prosecute an appeal, as against its codefendant, from a judgment dismissing the petition against both? It will be noticed that there was no issue presented between the parties,, to this appeal, and as between them there was, of course, no trial, and no judgment in favor of either against the other. We are of opinion that appellant, city of Lexington, has no right to appeal, as against its codefendant, Home Construction Company, from a judgment in their favor. We say “their” favor, because, if the city did not desire to adopt the answer of its codefendant, it should have pleaded, presenting its position. If its position is neutral, then the judgment is not against its interest.

For this reason, the appeal of the city of Lexington is dismissed.

Petition for rehearing by appellant overruled.  