Chadwell's Adm'r v. Chadwell

• Decision Date: 06 February 1896
• Citation: 33 S.W. 1118,98 Ky. 643
• Parties: CHADWELL'S ADM'R v. CHADWELL.
• Court: Kentucky Court of Appeals

33 S.W. 1118

98 Ky. 643

CHADWELL'S ADM'R v. CHADWELL.

Court of Appeals of Kentucky.

February 6, 1896

Appeal from circuit court, Clay county.

"To be officially reported."

Action by David Chadwell's administrator for settlement of his decedent's estate. From a judgment for Alexander Chadwell, Jr., on his claim against the estate, the administrator appeals. Reversed.

B. F Holman, J. W. Wright, and W. H. Holt, for appellant.

John L Scott & Son and L. A. Byron, for appellee.

GUFFY J.

This appeal is prosecuted by the appellant, David Chadwell, Jr. administrator of David Chadwell, Sr., from a judgment of the Clay circuit court rendered against him in favor of the appellee, Alexander Chadwell, Jr. It appears from this record that appellant had brought suit for the settlement of the estate of his father, David Chadwell, Sr., and that appellee had filed with the commissioner, to whom the suit had been referred to audit and report debts, etc., a paper purporting to be a note executed to Alexander Chadwell, Sr., by the decedent for $400, dated 12th May, 1888, due one day thereafter, which note he (appellee) claimed had been assigned to him. The commissioner, in his report, rejected the claim, and appellee excepted to that part of the report of the commissioner which rejected the claim. The court expressed the opinion that the proof was not sufficient to authorize the allowance of the said claim, but, inasmuch as appellee insisted that his claim was just, and desired an issue out of chancery, the court ordered a jury trial. The issue so submitted by the court is as follows: "And that the issue as to whether the note purporting to have been executed by the deceased, Chadwell, to Alex. Chadwell, is the act and deed of the said deceased, Chadwell, which issue will be docketed for trial the 10th day of the next term." A trial resulted in a verdict and judgment for the amount claimed by appellee, and, appellant's motion for a new trial having been overruled, he prosecutes this appeal.

The sole ground relied on in the motion for new trial is that the verdict is contrary to the evidence and contrary to law. The motion of appellee to dismiss the appeal, because appellant had failed to file statement required by the Code and rules of practice, must be overruled, as such statement now appears of record, and we must presume that the superior court allowed the same to be made, if, indeed, it had been omitted prior to the filing of the motion. The bill of exceptions now appears to be properly signed, and we presume the amendment, if any was made, was allowed by order of the superior court to which this appeal was taken.

It is insisted by counsel for appellee that no plea of non est factum was filed by appellant; hence, the...