Dunn v. Champion

• Decision Date: 18 December 1936
• Parties: DUNN et al. v. CHAMPION. PECK et al. v. SAME.
• Court: Kentucky Court of Appeals

99 S.W.2d 813

266 Ky. 757

DUNN et al. v. CHAMPION.

PECK et al. v. SAME.

Court of Appeals of Kentucky

December 18, 1936

Appeals from Circuit Court, Livingston County.

Suit by Mrs. Sarah E. Champion against Burse B. Dunn and others wherein defendants filed a set-off and counterclaim, and wherein C. T. Bennett intervened and filed counterclaim which suit was consolidated with suit of Charles Ferguson against Sarah E. Champion. From the judgment Burse B. Dunn Charles Ferguson, M. C. Peck, and others, appeal, and Mrs Sarah E. Champion cross-appeals.

Affirmed in part and reversed in part, and affirmed on cross-appeal.

Charles Ferguson, of Smithland, for appellants.

L. B. Alexander, of Paducah, and Marshall P. Eldred, of Princeton, for appelee.

STANLEY Commissioner.

The settlement of the estate of W. S. Champion, who died in 1918, has been prolific of much litigation. Different phases have heretofore reached us in seven appeals. Tolly v. Champion, 191 Ky. 114, 229 S.W. 90; Champion v. Bennett, 203 Ky. 393, 262 S.W. 602; Bennett v. Champion, 211 Ky. 6, 276 S.W. 833; Champion v. Dunn, 229 Ky. 148, 16 S.W.2d 791; Champion v. Dunn, 233 Ky. 366, 25 S.W.2d 1023; Champion v. Ferguson, 237 Ky. 115, 34 S.W.2d 957; Champion v. Ferguson, 241 Ky. 303, 43 S.W.2d 719.

The claims of the several parties were adjudged in one judgment rendered September 14, 1935, two cases having been consolidated. Burse B. Dunn, M. C. Peck, George Levan, Charles Ferguson, and C. T. Bennett have prosecuted an appeal against Mrs. Sarah E. Champion. She has cross-appealed. That is the first-styled appeal. Since the judgment against Peck and Levan was under $500, hence below the sum within the authority of the circuit court to grant an appeal, they have later prayed an appeal in this court which has been granted. That is the second-styled case. In order to avoid confusion, all parties will be referred to by name.

1. Mrs. Champion, the executrix and widow, contracted with Hon. Charles Ferguson to pay him, in addition to certain other compensation, a fee equal to 10 per cent. of the amount which she might be adjudged on claims asserted against her late husband's estate. She ultimately received $10,507.90. The assets of the estate yielded $5,358.85, and Mr. Ferguson was paid 10 per cent. of that sum by the master commissioner. In a suit filed by other attorneys, Mrs. Champion recovered judgment on a supersedeas bond, and B.B. Dunn, the sheriff of Livingston county, collected $5,149.05 on execution. Out of this, on December 15, 1925, he paid Mr. Ferguson $514.94, and C.T. Bennett $124.00 on a claim allowed against Mrs. Champion by the court for rent of property after its sale. The balance, after deducting $638.94, was paid Mrs. Champion. We held that the sheriff had no authority to pay the claims. Thereupon Mr. Ferguson sued Mrs. Champion for the balance of his fee and on May 2, 1929, attached the funds in the hands of the sheriff, which had been repaid to him by Ferguson and Bennett. The attachment was for $514.94, with 6 per cent. interest from December 13, 1921, amounting on that day to $743.05, and $30 costs, hence in excess of the amount which the sheriff had withheld, but not equal to his liability to Mrs. Champion. A judgment was rendered against the sheriff for the amount he had illegally withheld from Mrs. Champion ($638.94), together with 15 per cent. per annum interest thereon, the penalty prescribed by section 1715, Kentucky Statutes. It is recited in that judgment that Ferguson had caused an attachment of the money in the hands of the sheriff, and he was directed to pay $790.15 on the judgment to the clerk. Mr. Ferguson recovered judgment in his suit, but it was reversed, with an expression of opinion that a peremptory instruction should have been given against him. Upon a second trial, he again recovered judgment, but it was reversed because the verdict was flagrantly against the evidence.

By agreement, the case was then consolidated with one which had been lately filed by Mrs. Champion against Peck and others, sureties on the sheriff's bond (to be presently noted), a jury was waived, and the case referred to a special commissioner to be tried upon the evidence of the two former trials and such parts of the record made throughout the entire litigation as might be designated by schedule. After the commissioner made his report against Ferguson and the sureties, Ferguson filed an amended petition making his allegations more specific and definite, and Mrs. Champion filed an amended answer. In it she stated that the money which had been in the clerk's hands had been paid over to Mr. Ferguson. That was controverted. The court, upon exceptions to the commissioner's report and a consideration of the record, recited in his opinion, as had the commissioner in his report, that the money had been paid to Mr. Ferguson under order of court, and, after adjudging him not to be entitled to recover on his petition the balance of the fee claimed, the judgment went further and awarded judgment against him in favor of Mrs. Champion for $705.66, the amount stated to have been received by him with interest thereon. Ferguson appeals.

Recognizing the law of the case as previously declared, the court properly adjudged Mr. Ferguson not entitled to a recovery, for the record was exactly the same as that upon which the previous judgment had been rendered and reversed. In that respect the judgment is correct. There is brought to us as a supplemental transcript a copy of the judgment rendered in favor of Mr. Ferguson on the second trial of his case, which directs the clerk to pay him the money in her hands under attachment, less the costs of the action. It bears the receipt of Mr. Ferguson for $670.41. The difference between that sum and $705.66 paid by Dunn, the sheriff, doubtless was court costs. It is doubtful if this was part of the record before the commissioner and the trial court under the stipulation of the parties, for it was made after the record stipulated to be considered was made. It is said in Mr. Ferguson's brief that had this matter been presented below it would have been shown that the matter was adjusted after a reversal of the judgment. Regardless of this, the matter of payment to him was put in issue, and there was no proof unless his receipt be deemed prima facie evidence. It is certain that no counterclaim throughout the entire record was ever asserted against the plaintiff and no recovery of him prayed. Nor was any motion made for a rule to refund. A court cannot voluntarily grant or thrust upon a litigant something he does not ask for. Holt's Adm'r v. Johnson, 247 Ky. 180, 56 S.W.2d 962. The court, therefore, erred in rendering the judgment against Mr. Ferguson, upon which execution could issue, as it was not supported by the pleadings. On the return of the case upon motion and a proper showing, the court may rule Mr. Ferguson to repay the sum to the clerk with interest from the date of the filing of the mandate reversing his first judgment.

2. When this court held that Sheriff Dunn had no authority to pay the Ferguson and Bennett claims out of money collected on the execution, as we have said, the trial court rendered judgment against him for the amount, $638.94, with 15 per cent. per annum interest (section 1715, Kentucky Statutes), from December 15, 1925, the date he should have paid it to Mrs Champion. Although that judgment directs the payment of $790.15 of the sum to the clerk to be held under Mr. Ferguson's attachment, only $705.66 was paid. That was on September 26, 1929. Execution...