Woodland Cemetery Co. v. Ellison

• Decision Date: 06 March 1902
• Parties: WOODLAND CEMETERY CO. et al. v. ELLISON et al. [1]
• Court: Kentucky Court of Appeals

67 S.W. 14

WOODLAND CEMETERY CO. et al. v. ELLISON et al. ^[1]

Court of Appeals of Kentucky.

March 6, 1902

Appeal from circuit court, Whitley county.

"Not to be officially reported."

Action brought by H. F. Finley against R. D. Hill and others, and afterwards permitted to be docketed and prosecuted in the name of the Woodland Cemetery Company against J. M. Ellison and others. Judgment for defendants, and the Woodland Cemetery Company and H. F. Finley appeal. Reversed.

R. S Crawford, for appellants.

Tye &amp Denham, for appellees.

O'REAR J.

On a former appeal we held (42 S.W. 735) that a petition averring that appellants Finley and others had entered into an agreement to buy a certain plat of land, to be dedicated and used as a cemetery for the subscribers, which agreement was subsequently carried into effect by incorporating the parties and buying the land in question; and which petition further alleged that the directors, without the consent and against the wishes of the complaining stockholders, and without the consent of any of the stockholders except such as were directors, had wrongfully sold a part of the land, including some of the graves, and were abandoning the property,--stated a cause of action. On a return of the case the directors answered that, in their judgment, the property was not suitable for cemetery purposes; that when they came to use it they had discovered that the rock was too near the surface that it was found undesirable on this and other accounts; and that the corporation owed a debt of two hundred and forty and some odd dollars to Freeman, their vendor, for the land, and that they sold a part of this land to appellee Ellison in discharge of the purchase-money lien; that they received some hundred and thirty-odd dollars above the purchase money which they invested in other land, more suitable, in their judgment, for cemetery purposes, and better located; that however, upon the reversal of this case, and because of the serious complaint of appellant Finley, they had repaid the $130 into the treasury of appellant company, and had revoked the order declining to sell lots for burial purposes, and had thereupon resigned as directors. They elected to take the other property purchased, known as the "Highland Cemetery Company," and had incorporated a new company to operate it. The proof taken shows that appellants Finley and others bought the plat of ground in question about...