Arnett v. Howard

• Decision Date: 16 December 1913
• Citation: 156 Ky. 458,161 S.W. 531
• Parties: ARNETT v. HOWARD.
• Court: Kentucky Court of Appeals

161 S.W. 531

156 Ky. 458

ARNETT v. HOWARD.

Court of Appeals of Kentucky.

December 16, 1913

Appeal from Circuit Court, Magoffin County.

Action by Jane Arnett, administratrix, against W. O. Howard. From a judgment for defendant, plaintiff appeals. Affirmed.

D. D Sublett, of Salyersville, for appellant.

John H Gardner, of Salyersville, and Grannis Bach, of Jackson, for appellee.

CLAY C.

In the month of February, 1896, William O. Howard sold to his brother, Calloway Howard, an interest in certain lands that had been conveyed to them by their father. The consideration was $500, for which Calloway Howard executed to William O Howard his note, payable January 1, 1897. On February 27, 1896, William O. Howard purchased from D. H. Arnett, then an infant, a tract of land for which he paid him $260 in personal property, and also assigned to him the note for $500 executed by his brother, Calloway Howard. Within ten days after this note became due, D. H. Arnett, by his next friend, instituted suit against Calloway Howard to recover thereon. When this suit was instituted D. H. Arnett was an infant, and had not conveyed to W. O. Howard the tract of land purchased by the latter, nor had W. O. Howard conveyed to Calloway Howard his interest in his father's land. W. O. Howard intervened in the action brought on the note to prevent the collection thereof until Arnett conveyed to him the land which he had purchased. In this condition the action pended until Arnett became of age. Thereupon he executed to W. O. Howard a deed to the land purchased by the latter, and at the same time W. O. Howard executed to Calloway Howard, his brother, a deed to the land which the latter had bought. When this was done, Arnett asked permission to withdraw his answer, and cross-petition, and subsequent pleadings filed in the case. He was then dismissed from the action. Thereafter Calloway Howard set up some kind of a defense to the note sued on, and on February 6, 1900, the court adjudged that he was entitled to a credit of $225, and rendered judgment against him for the balance of $275. Judgment was also rendered against W. O. Howard for $225.

On November 15, 1899, D. H. Arnett, by a writing which he signed, transferred and assigned the $500 note in question to Ambrose Arnett. Thereafter Jane Arnett qualified as administratrix of both D. H. Arnett and Ambrose Arnett, who had previously died.

Some time after the year 1900 W. O. Howard brought suit against D. H. Arnett to enjoin the collection of the judgment which had been rendered in his favor against W. O. Howard. D. D. Sublett, to whom the judgment had been assigned, was also made a party defendant. This action continued on the docket until October, 1906, when judgment was rendered perpetually enjoining the defendants from collecting the judgment.

Plaintiff, Jane Arnett, as administratrix of D. H. Arnett, and Ambrose Arnett, brought this action against W. O. Howard to recover the balance due on the $500 note executed by Calloway Howard, amounting to the sum of $225, with interest from January 1, 1897, and also the costs in the suit of D. H. Arnett against Calloway Howard, and to enforce the lien reserved on the land to secure the payment of said note. Judgment was rendered in favor of the defendant, and plaintiff appeals.

As a defense to plaintiff's claim defendant pleaded res judicata and the statute of limitations. The plea of res judicata we deem it unnecessary to consider. As to the plea of the statute of limitations, the following facts appear: In the suit on the $500 note of D. H. Arnett against Calloway Howard,...