Blenke v. Caldwell

• Decision Date: 27 October 1933
• Citation: 64 S.W.2d 428,251 Ky. 46
• Parties: BLENKE et al. v. CALDWELL, Circuit Judge.
• Court: Kentucky Court of Appeals

64 S.W.2d 428

251 Ky. 46

BLENKE et al. v. CALDWELL, Circuit Judge.

Court of Appeals of Kentucky

October 27, 1933

Original petition by Joseph F. Blenke and others for a writ of prohibition against A. M. Caldwell, Judge of Campbell Circuit Court.

Petition dismissed.

Odis W Bertelsman, of Newport, for petitioners.

Barbour & Bassman, of Newport, for respondent.

PERRY Justice.

This case is before us upon the original petition of Joseph M Blenke, asking that a writ of prohibition be issued against the defendant, the Honorable A. M. Caldwell, judge of the Campbell circuit court, upon the ground, as he contends, that the respondent is proceeding beyond his jurisdiction in entertaining action or assuming jurisdiction in the case of Victoria Nassano et al. v. Joseph F. Blenke et al instituted in the Campbell circuit court against the petitioner, through his having therein overruled the special demurrer to said action and in granting the temporary injunction therein sought against petitioner as defendant therein.

On April 17, 1933, Rose Blenke died without issue and intestate leaving surviving her as her next of kin and heirs at law two brothers, a sister, two children of a predeceased sister, and her husband, the petitioner herein, Joseph F. Blenke, who, it appears, on April 24 next following his wife's death, qualified as her administrator by making bond as such in the amount of $2,000.

Shortly after petitioner's appointment and qualification as administrator, he, by an ex parte proceeding in the Campbell county court, secured an order adjudging him to be the owner of certain shares of stock left by his deceased wife, Rose Blenke, of the estimated value of $8,000, that the same were not the property of decedent's estate and consenting to their being transferred to Joseph Blenke individually.

Upon the discovery by the next of kin that such order had been made, it was, upon their motion, set aside by the court and shortly thereafter, in July, 1933, they filed an action in the Campbell circuit court against Joseph Blenke, as administrator, therein alleging that Rose Blenke had died intestate, the owner of certain stocks, bonds, and cash of the value of some $18,000, of which the defendant had, by fraudulent misrepresentation of its value, secured possession and administration upon making in the Campbell county court official bond for only $2,000, and further charging that he was attempting to and would fraudulently convert said property to his own use, unless enjoined by the court from selling and disposing of it; that the administrator was threatening to remove from the state, and had already removed therefrom, these stocks and bonds held by him as administrator; all of which together presented a situation requiring the jurisdiction of a court of equity to protect the interests of the next of kin, one of whom was a lunatic and another an infant, and prayed that they be adjudged to be the owners of the estate as the heirs at law of the decedent, Rose Blenke, subject only to the marital rights therein of the defendant Joseph Blenke, against whom they further sought a temporary injunction restraining him from disposing of it, and further prayed that the court take jurisdiction of the settlement of the estate and that its administrator, Joseph Blenke, be required to make settlement thereof with the master commissioner of the court.

Blenke appeared in opposition to plaintiffs' motion for an injunction against him, and filed both a special and general demurrer to the petition, denying the court's right of jurisdiction in the case and the legal sufficiency of the petition. Both demurrers were overruled and the temporary injunction granted as sought by plaintiffs. Thereupon Joseph Blenke, defendant therein, filed in this court his petition with notice, seeking a writ of prohibition against the presiding judge of the lower court, the Honorable A. M. Caldwell, prohibiting his further proceeding in the action until finally adjudicated by this court.

By the petition here before us, the petitioner traverses the material allegations made by the plaintiff in what is termed their "settlement action," filed, as stated in the Campbell circuit court, and pleads that the respondent, as its presiding judge, should have sustained petitioner's special demurrer filed thereto and have dismissed the petition seeking settlement of the Rose Blenke estate and an injunction against the defendant's fraudulent sale and disposition of the estate property, which had come into his hands as its administrator, upon the alleged grounds that the suit was filed in violation of the provisions of section 428 of the Civil Code of Practice, in that it was one to settle the estate of Rose Blenke and was filed against its administrator within less than six months after his qualification as such, and, further, that the court's taking jurisdiction thereof hindered and interfered with the orderly administration of the estate in the county court, which court only had jurisdiction thereof, and would result in requiring excessive litigation, injurious to the interest of the parties, and he therefore prayed for a writ of prohibition against the defendant, the Honorable A. M. Caldwell, presiding judge of the ...