Clark v. Raison

• Decision Date: 25 September 1907
• Citation: 104 S.W. 342,126 Ky. 486
• Parties: CLARK v. RAISON.
• Court: Kentucky Court of Appeals

104 S.W. 342

126 Ky. 486

CLARK v. RAISON.

Court of Appeals of Kentucky.

September 25, 1907

Appeal from Circuit Court, Campbell County.

"To be officially reported."

Action by C. L. Raison, Jr., for use, etc., against Agustus H. Clark and another. From a judgment for plaintiff, defendant Augustus H. Clark appeals. Reversed.

Hodge &amp Wolff, for appellant.

C. L Raison, Jr., pro se.

BARKER J.

Alfred R. Clark obtained a judgment against his brother, Augustus H Clark, in the Campbell circuit court, for the sum of $1,185.35, which he assigned to the plaintiff, C. L. Raison, Jr. After a return of nulla bona by the sheriff of Campbell county, into whose hands the execution came, this action was instituted for a recovery and attachment, under the provisions of section 439 of the Civil Code of Practice, and also to set aside a conveyance of certain real estate in the city of Dayton, Campbell county, Ky. to Emma J. Clark, the wife of the defendant Augustus H. Clark, on the ground that the property really belonged to the husband, who had procured the conveyance to his wife in order to conceal his property and defraud his creditors. An affidavit was filed of the nonresidence of the defendants, and a warning order procured against them, under the provisions of the Code regulating constructive service of process. Afterwards, Augustus H. Clark entered his appearance, and filed an answer in three paragraphs. By the first, he pleaded in bar of the action a judgment rendered in a case to settle his mother's estate and for a division of her property among her heirs at law. In the second, he pleaded as a set-off a claim which he had against his brother, amounting in round numbers to $9,000. By the third, he denied all of the material allegations of the petition as to the fraud by which the property in question was conveyed to his wife, the defendant Emma J. Clark. The court sustained a general demurrer to the first and second paragraphs of the answer, and overruled it as to the third. Afterwards, evidence was adduced on the question of the fraudulent transfer by the husband to his wife, and, the case being finally submitted to the court, a judgment was rendered in favor of the plaintiff, holding that the transfer of the property in question by the husband, Augustus H. Clark, to his wife, Emma J. Clark, was fraudulent, and subjecting it to the payment of plaintiff's claim. From this judgment, Augustus H. Clark is here on appeal.

The trial court properly sustained plaintiff's demurrer to the first paragraph of the answer pleading res adjudicata. The claim of C. L. Raison, Jr., is not at all antagonistic to the judgment in the case of Clark v. Clark, in which the estate of Miriam Clark, deceased, was settled and distributed. On the contrary, what is sought in this action is to enforce the judgment in the settlement case, and to subject to the payment of his debt that part of the estate of his mother which the judgment distributed to Augustus H. Clark. A judgment can only be pleaded as a bar to a claim which is antagonistic to it.

A more serious question is presented in regard to the validity of the warning order by which the nonresident Emma J. Clark was sought to be constructively brought before the court. The warning order made by the clerk is as follows: "The defendant Augustus H. Clark, etc., warned to appear in this court within sixty days after the making of this warning order and answer petition, and Fred Bassman is appointed to correspond with and defend for said nonresident defendants. May 20, 1904." It will be observed that Emma J Clark's name does not appear in the warning order, unless she can be included under the abbreviation "etc." Clearly this is not sufficient to bring her before the court. In the case of Brownfield v. Dyer, 7 Bush, 505, a warning order, which required the defendant to answer at...