Forrester v. Howard

• Decision Date: 10 January 1907
• Citation: 98 S.W. 984,124 Ky. 215
• Parties: FORRESTER ET AL. v. HOWARD ET AL.
• Court: Kentucky Court of Appeals

98 S.W. 984

124 Ky. 215

FORRESTER ET AL. v. HOWARD ET AL.

Court of Appeals of Kentucky.

January 10, 1907

Appeal from Circuit Court, Harlan County.

"Not to be officially reported."

Action by J. G. Forrester and others against E. S. Howard and others. From a judgment vacating the orders made in the case on behalf of plaintiffs, and from an order sustaining objections to the commissioner's report, plaintiffs appeal. Reversed and remanded.

J. G. &amp J. S. Forrester and H. C. Clay, for appellants.

W. F Hall and Greene & Van Winkle, for appellees.

CARROLL C.

The appellants, who are attorneys, were employed by appellees to defend a suit brought against them to recover a tract of land containing 500 acres known as the "Bingham Patent." They were successful in the defense of the action, and were allowed a lien on the land for a reasonable fee. Afterwards in 1894, they brought this suit, averring that their services were reasonably worth $300, and asked that so much of the land as might be necessary to satisfy the same be sold for that purpose. Pending this action it was agreed that one B F. Creech owned a certain part of the 500 acres, and by an amended petition appellants sought to subject the remainder of the tract, which consisted of 133 acres, to the payment of their debt, and in 1896 a judgment was rendered in their favor for $300, and it was further adjudged that they had a lien on the 133 acres, or rather the entire 500 acres, which was described by metes and bounds, excepting that part thereof owned by Creech, which was also described in the judgment-- the description of the land and the part excepted being the same in the judgment as in the pleadings. Under this judgment, the 133 acres were sold and purchased by appellants for the amount of their debt, and in November 1896, a deed was made conveying to them the land, and a writ of possession awarded. After the writ of possession was awarded, the case was left off the docket, and the next order was made in August, 1899. This order recites that the deed of 1896 was prematurely made and is defective, and, on motion of appellants, is quashed. The report of sale made by the commissioner in 1896 was confirmed by this order, and the commissioner directed to prepare another deed conveying to appellants the land described in the former judgment, and thereupon the deed produced by the commissioner was acknowledged and approved by the court. The appellees had no notice of this order--the only purpose of which was to supply an omission in the record in failing to have the report made by the commissioner in 1896 confirmed. Again at the February term, 1905, of the court, the action on motion of appellants was redocketed, and an order entered reciting that the deed made by the commissioner in 1899 was defective in failing to correctly describe the land, there being omitted from the deed the two last calls in the description contained in the pleadings and judgment, and the commissioner was directed by this order to correct the deed in the respect mentioned, and prepare and report to the court a deed containing a correct description of the property. Thereupon the commissioner produced a deed which was examined and approved by the court, and another writ of possession was ordered. This order was also made without notice to appellees. At the July term, 1905, the appellees, after notice to appellants, moved the court to set aside and vacate the orders made in the case on behalf of appellants in 1899 and in 1905, and tendered to appellants the amount of their debt, interest, and costs. To this motion the appellants responded, in substance, that the only purpose of the motion made in 1899 and in 1905 was to correct the omission and errors heretofore mentioned, and that the appellee E. S. Howard was then the sole owner of that part of the Bingham patent containing 133 acres, and which was subjected to their lien and conveyed to them,...