Brashears v. Brashears

• Decision Date: 22 April 1908
• Citation: 110 S.W. 303
• Parties: BRASHEARS v. BRASHEARS.
• Court: Kentucky Court of Appeals

110 S.W. 303

BRASHEARS v. BRASHEARS.

Court of Appeals of Kentucky.

April 22, 1908

Appeal from Circuit Court, Perry County.

"Not to be officially reported."

Action on implied assumpsit by R. O. Brashears against R. H Brashears for conversion of timber. From a judgment granting a motion to set aside a judgment for plaintiff entered on default, plaintiff appeals. Affirmed.

Hazelrigg Chenault & Hazelrigg, R. O. Brashears, and Howard, Howard &amp Horn, for appellant.

J. J C. Bach and W. H. Miller, for appellee.

CARROLL J.

In February, 1898, the appellant, R. O. Brashears, as administrator of R. S. Brashears' estate, brought a suit in ordinary against the Day Bros. Lumber Company, the Southern Lumber Company, the Asher Lumber Company, and appellee, R. H. Brashears. The petition reads as follows "The plaintiff states that the defendants, by agents and employés, within the last five years, unlawfully, forcibly, and against the will and consent of plaintiff entered upon the following land belonging to the heirs of R. S. Brashears situated on the Bear branch, in Perry county, Ky. and described as follows, viz.: Beginning on or near the head of Bear Branch on a dogwood, white oak, and poplar, S. 10° >>> E., 45 poles, continuing with courses and distances to the beginning, containing 450 acres more or less, conveyed by deeds properly signed and acknowledged and transfers properly recorded in Deed Book ___ Perry county court from Dykes Jessie to R. S. Brashears showing a defined and well-marked boundary by actual survey; and 200 acres surveyed in 1849 and patented in 1850 to R. S. Brashears showing a defined and well marked boundary by actual survey; and patent of 400 acres of land made in the name of Jessie Dykes, July 1st, 1845, recorded in Book 13, page 50, land office at Frankfort, Ky. and said defendants did thereon unlawfully enter upon plaintiff's rights and titles, and cut down more than 300 poplar and other trees, and sawed into logs valuable timber then growing upon said land, and removed said logs, and have converted them to their own use. Said trees so cut down and removed by the said Day Company were of the value of $___ and said logs so cut and removed by other parties are worth the sum of $___. Plaintiff further states that he was duly qualified and appointed administrator of R. S. Brashears' estate by orders entered of record at the August special term, 1892, of the Perry circuit court, and gave bond as the law requires, which was accepted and approved by the court. Certified copies of same will be filed in due time herein if required by the court. He now waives the tortious acts of the defendant herein before set out, and sues the defendants jointly on the implied contract or promise to pay the plaintiff the value of said trees and logs so cut, removed, and converted to their, defendants', own use, not, however to exceed the sum of $4,944.57, and plaintiff now alleges that the defendants jointly and severally, on an implied promise or contract, are indebted and liable to the estate for the value of the aforesaid trees or logs so taken not exceeding the sum of $4,944.57, and no part thereof has ever been paid. Plaintiff further alleges that each of said companies are doing business in this state as corporations duly authorized under the existing laws, with power usual to incorporated companies, and that said saw logs and other timber was cut and taken from off of the possession of the plaintiff in Perry county, Ky. during the years of 1892, 1893, 1894 and 1895 by defendants' agent, employés, wrongfully, and contrary to law. Wherefore the plaintiff prays judgment for the value of all trees or logs so cut and removed, and for 10 per cent. damages thereon for the wrongful seizure and detention thereof, for costs and all proper relief." At the following March term of the court this judgment was entered: "This cause having been on a former day of this term submitted on a motion of plaintiff to take the petition as true against the defendant R. H. Brashears, and it now appearing to the satisfaction of the court that said defendant R. H. Brashears was on the 21st day of February, 1898, duly served with process and duly summoned to answer herein for a period of more than 10 days previous to the first day of this term, and failing to answer, the petition as to him taken as true, and confessed for the amount claimed, it is therefore adjudged by the court that Robt O. Brashears, personal representative, recover of the defendant the full and just sum of $4,944.57, with interest thereon at the rate of 6 per cent. per annum from the 14th day of February, 1898, until paid, and the cost created by reason of this action." The record does not show that the appellee R. H. Brashears or either of the other defendants entered their appearance to the action or made any motion therein; nor was any other order or step taken in the case until 1907, when appellee R. H. Brashears, the judgment defendant, appeared and moved the court to set aside the judgment, "first, because the judgment purports to be in favor of R. O. Brashears as administrator, when he was not at any time the administrator of R. S. Brashears; second, because the defendants Day Brothers Lumber Company, Southern Lumber Company, Asher Lumber Company were not before the court when the judgment against R. H. Brashears was rendered, nor was the action dismissed as to them, nor had R. H. Brashears been served with process; third, because there is no description of the land in the petition; fourth, because the action was for the recovery of damages, and the assessment should have been made by a jury; fifth, because the petition contains no prayer for any sum of money, and the court had no authority or power to render any judgment for any specified amount; sixth, because, if there was any cause or action for cutting and removing timber to the estate of R. S. Brashears, said action was in his children and heirs at law, and not in his...