Davie's Exor. v. City of Louisville

• Decision Date: 27 May 1914
• Citation: 159 Ky. 252
• Parties: Davie's Executor v. City of Louisville. Same v. Same.
• Court: Kentucky Court of Appeals

Page 252

159 Ky. 252

Davie's Executor v. City of Louisville Same v. Same.

Court of Appeals of Kentucky.

Decided May 27, 1914.

Appeals from Jefferson Circuit Court (Chancery, First Division).

DAVIS W. EDWARDS for appellants.

HARRIS FLEMING, PENDLETON BECKLEY and GEORGE CARY TABB for appellees.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER — Reversing.

These two appeals grow out of the same facts, and will be considered in one opinion.

James S. Kalfus had an estate for life in a certain tract of land located on Market Street in the City of Louisville. He conveyed this interest to the Fidelity Trust & Safety Vault Company, trustee of Mrs. C. W. Kalfus. The remainder interest in the land was owned by Mrs. Adeline K. Davie. The taxes on the property were assessed against the Fidelity Trust & Safety Vault Company, trustee of Mrs. C. W. Kalfus.

On March 29, 1904, the City of Louisville instituted suit to enforce its lien for taxes for the years 1901, 1902 and 1903, on the property in question. To this petition the Fidelity Trust & Safety Vault Company, as trustee for Mrs. C. W. Kalfus, and Mrs. C. W. Kalfus, were made parties defendant, and process duly served on them. On November 10, 1904, an amended petition was filed setting out the fact that the Fidelity Trust & Safety Vault Company had changed its name to Fidelity Trust Company, and making that company, both in its individual capacity and as trustee for Mrs. Kalfus, and also James S. Kalfus and F. W. Samuels, parties defendant On August 2, 1909, plaintiff filed an amended and supplemental petition, wherein it sought to recover taxes for the years 1904 and 1905. All the parties defendant to this proceeding were duly served with process except James S. Kalfus, who had recently died.

No further action was taken in the case until March 29, 1911, when the city filed the following amended petition:

The plaintiff, City of Louisville, amends its petition herein, and for amendment states that the defendant, James S. Kalfus, is now dead, and that since his death, the Fidelity Trust Company, Mrs. C. W. Kalfus, F. W. Samuels, and W. C. Priest Company have no interest in the property described in the petition, but that the said property is now owned by Adeline K. Davie, and the plaintiff now drops the names of Fidelity Trust Company, Mrs. C. W. Kalfus, F. W. Samuels and W. C. Priest Company and makes the said Adeline K. Davie a party to this action and asks that process be issued warning her to appear and defend.

"Wherefore, plaintiff prays as in its original petition, and for all proper relief."

Summons on the amended petition was executed on Adeline K. Davie on April 3, 1911. On May 20, 1911, judgment by default was entered for the taxes alleged to be due for the years 1901, 1902, 1903, 1904 and 1905, and the city was adjudged a lien on the property to secure the same. The judgment further appointed W. S. Sanford receiver, with power to rent the property and apply the income to the payment of the debt and costs. In case he reported that it was impracticable to rent the property, a sale thereof was directed. On May 10, 1913, the judgment of May 20, 1911, was revived against the Louisville Trust Company as executor and trustee of Adeline K. Davie. From the default judgment of May 20, 1911, and from the judgment of revivor of May 10, 1913, the Louisville Trust Company, as executor and trustee of Adeline K. Davie, appeals.

Appellant insists that the pleadings, so far as Adeline K. Davie is concerned, do not support the judgment. A default admits only what is well pleaded; consequently a judgment by default cannot be sustained if plaintiff's petition does not state a good cause of action, or lacks those averments which are necessary to show his right to recover. 23 Cyc., 740; Doud, Sons & Co. v. Duluth Milling Co., 55 Minn., 53; Schuler v. Mueller, 193 Ill., 402; Barnes v. Bigore, 92 Cal., 631; Martin v. Ky. Land & Investment Co., 146 Ky., 525; Stamper v. Forman-Earle Co., 158 Ky., 324. In the first place the point is made that the pleadings...