Bean v. Meguiar

Decision Date17 November 1898
Citation47 S.W. 771
PartiesBEAN et al. v. MEGUIAR et al. [1]
CourtKentucky Court of Appeals

Appeal from circuit court, Montgomery county.

"Not to be officially reported."

Action by Meguiar, Helm & Co. against Ann E. Bean and others to recover land purchased at execution sale. Judgment confirming sale of land made under a judgment setting aside the execution sale, and ordering a resale of the land, and defendants appeal. Affirmed.

Woodford & Chenault, for appellants.

Tyler &amp Apperson, for appellees.

BURNAM J.

This appeal is taken from a judgment of the lower court overruling appellants' exceptions to the report of a sale of real estate made by the deputy master commissioner of the Montgomery circuit court under a judgment of that court. The grounds of exception are: First, that the description of the property ordered to be sold is too indefinite and uncertain second, that appellant Ann E. Bean, the widow of James Bean deceased, had no interest in the tract of land, or any part thereof, under the will of her husband, which was liable to sale to satisfy the debts of the creditors, and that the judgment erroneously deprived Grace Bean and the other children of the provision made for them by the will of their father; and, third, that the report of the sale was signed in the name of H. Clay Cooper, deputy commissioner of the Montgomery circuit court, instead of in the name of the master commissioner, by H. Clay Cooper, deputy. This is the second appeal which has been prosecuted to this court from the judgment under which this land was sold. Upon the former appeal (29 S.W. 306) this court said: "The will of James Bean is not copied into the record; hence it must be presumed by this court that the will authorized the judgment of the lower court. This being true, and it appearing that the execution was valid, and appellees had paid the amount bid for the life estate in the land, the judgment of the court below seems to be in accordance with the law and facts, and is therefore affirmed." And a petition for rehearing in that case was overruled. The opinion upon the former appeal is decisive of the rights of the parties to this appeal upon all questions involving the validity of that judgment, as on a second appeal this court will not go behind the first decision, and decide a question which was, or could have been, raised on the first appeal, unless the question were one that was expressly left...

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8 cases
  • In re Receivership of Great Western Beet Sugar Co.
    • United States
    • Idaho Supreme Court
    • 15 d1 Julho d1 1912
    ...complaining. (Miller v. Lanham, 35 Neb. 886, 53 N.W. 1010; 17 Am. & Eng. Ency. Law, 999; Meeker v. Evans, 25 Ill. 322; Bean v. Meguiar, 20 Ky. L. R. 885, 47 S.W. 771; McKnight v. Jacob, 5 Ky. L. R. 176; Wrightson Kline, 5 Ky. L. R. 57; Stryker v. Storm, 1 Abb. Pr., N. S. (N. Y.), 424.) The ......
  • Sullenger v. Carey-Reed Co.
    • United States
    • Kentucky Court of Appeals
    • 19 d2 Novembro d2 1935
    ... ... a new theory into the case and to make a defense which should ... have been invoked at the first trial. Bean v ... Meguiar, 47 S.W. 771, 20 Ky. Law Rep. 885 ...          It is ... also argued that the judgment is erroneous in that personal ... ...
  • Bauer Cooperage Co. v. Ewell & Smith
    • United States
    • Kentucky Court of Appeals
    • 16 d3 Outubro d3 1912
    ... ... question which was, or could have been, then decided, unless ... it was especially left open for future litigation. Bean ... v. Meguiar, 47 S.W. 771, 20 Ky. Law Rep. 885. If this ... action was prematurely brought, that question should have ... been raised upon the ... ...
  • Hollingsworth v. Warnock
    • United States
    • Kentucky Court of Appeals
    • 17 d4 Novembro d4 1898
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