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374 S.W.2d 480

Farrow v. Downing

Court of Appeals of Kentucky

Decided January 14, 1964

Court of Appeals of Kentucky · decided 1964-01-14

Relies on Bender v. Eaton · Barker v. Breslin · Fannin v. Keck

Good law ✅— No negative treatment on recordhow we know

Decided 1964-01-14

How this case has been cited

Cited by 4 later decisions — most recently April 2008

4 state decisions

2019641970198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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CLAY, Commissioner.

¶1This is an original proceeding in this Court to compel the respondent Judge of the Jefferson Circuit Court to permit petitioner to file an amended complaint in a personal injury action. The amendment sought to increase the amount of claimed damages after respondent had granted a new trial on the ground of excessiveness of the award by a jury in the original trial. It is unnecessary to examine the basis of respondent’s order overruling petitioner’s motion to file the amended complaint. Relief will not be granted in this proceeding for at least three reasons.

¶2The remedy is not available except under extraordinary and unusual circumstances where it is apparent that great injustice and irreparable injury will be suffered by the petitioner. Barker v. Breslin, Ky., 329 S.W.2d 578. No such showing is made.

¶3*481Mandamus will not issue to control the discretion of an inferior court. Fannin v. Keck, Ky., 296 S.W.2d 226. Though petitioner contends to the contrary, the necessity for an order of court under CR 15.01 reposes some discretion in the trial court.

¶4Assuming respondent has abused his discretion, mandamus will not be granted if the petitioner has an adequate remedy by appeal or otherwise. Bender v. Eaton, Ky., 343 S.W.2d 799. Petitioner has two potential remedies if justice requires his amended pleading. Since respondent’s order was interlocutory, he could sustain a renewed motion by petitioner at any time prior to or during the trial if the record or the proof establishes grounds for the award of additional damages. See CR 15.02. In any event, petitioner will have a remedy by appeal if the ruling constitutes an abuse of discretion to petitioner’s prejudice.

¶5The order of mandamus is denied.

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