Cox v. Spears

• Decision Date: 20 September 1918
• Parties: COX v. SPEARS ET AL.
• Court: Kentucky Court of Appeals

206 S.W. 20

181 Ky. 363

COX v. SPEARS ET AL.

Court of Appeals of Kentucky.

September 20, 1918

Appeal from Circuit Court, Pike County.

Action by Nancy Cox against Adam Spears and G. M. Mullins. The cause was dismissed, and plaintiff appeals. Reversed, with directions.

W. K Steele and J. S. Cline, both of Pikeville, for appellant.

E. J Picklesimer, of Pikeville, for appellees.

SAMPSON J.

Mrs Nancy Cox, widow, now about 50 years of age, has been twice married, both of her husbands being dead. At the death of her first husband she was assigned dower from his landed estate, upon which she continued to reside. Later on she married John Cox, and removed with him some miles, where they took up their residence on land owned by Cox. Some time thereafter Cox died, the owner of lands from which the widow was assigned dower. She had some children by her first husband. She decided to return to her old home, where dower was assigned her in her first husband's estate; but she left her children by her first husband upon the dower assigned her in the Cox lands. Afterwards a judgment was obtained against the widow in a suit by the remainderman for waste. On this judgment execution was issued and levied upon her dower interest in the Cox lands and a sale was had.

This action was then instituted by Mrs. Cox against the execution creditor and the sheriff to set aside the sale made under the execution. Some months after the institution of the action the petition, upon motion of the plaintiff, was taken for true as against the creditor, but not as to the sheriff. Later on a motion was made by the creditor to set aside the order taking the petition for true, and this was done, and the creditor filed his answer, the affirmative allegations of which were controverted of record. A few months after this on motion of the defendant and in the absence of the plaintiff and her counsel, the case was submitted for judgment. On learning of this, Mrs. Cox, who lives some 10 miles in the country, immediately came to Pikeville and objected to the submission. She also entered a motion to set aside the submission and continue the case, because the same was not prepared and no proof had been taken. She learned that her attorney, J. H. Adkins, who prepared her suit, had ceased to practice law and had gone into the coal business, and was therefore not present at the time of the submission of the case. These facts were shown by the...