Fristoe v. Gillen

• Decision Date: 20 May 1904
• Citation: 80 S.W. 823
• Parties: FRISTOE et al. v. GILLEN et al.
• Court: Kentucky Court of Appeals

80 S.W. 823

FRISTOE et al. v. GILLEN et al.

Court of Appeals of Kentucky.

May 20, 1904

Appeal from Circuit Court, Graves County.

"Not to be officially reported."

Action by C. Gillen against Mollie Fristoe and others. From the judgment certain defendants appeal. Reversed.

Lee &amp Hester, for appellants.

Murphy & Evers, for appellees.

NUNN J.

Prior to the year 1893, one J. W. Gillen departed this life intestate, domiciled in Graves county, Ky. He left some personal estate and 160 acres of land situated in that county. He left no wife or children surviving him, his only heirs being his brothers and sisters and their descendants who are appellants and appellees herein. His brother, C Gillen, one of the appellees, administered upon his personal estate and settled and distributed it. In the month of September, 1903, C. Gillen instituted this action, making his brothers and sisters and the descendants of those who had died parties defendant. By this action he sought to divide the 160 acres of land left by his deceased brother between his heirs, alleging that it was susceptible of division into six equal parts without materially impairing its value, and prayed for such a division, and asked, if the court could not adjudge a division, that then it be sold for the purpose of a division of the proceeds. Afterwards C. Gillen filed an amended petition in which it was alleged that one of the appellants, Alfred H. Gillen, was indebted to the estate of J. W. Gillen, but did not state the amount, and asked that his interest in the land be charged with the payment of this indebtedness. The appellants representing four of the six interests in this estate answered, and denied that the property could be divided without materially impairing its value, and asked that the land be sold and the proceeds be divided. The appellant Alfred H. Gillen filed a demurrer to the amended petition, which was sustained. These appellants representing the four interests employed their own counsel who represented them in this litigation. The court adjudged a sale of the land, and on the last day of the term of the court at which the sale of the land was ordered there was placed on the minute book of the court the following words and figures: "C. Gillen vs. Margaret Eden etc.--M. & E. allowed an attorney's fee of $300. Upon proof heard to be taxed as cost;" and at the close of the minute book of that day these words and figures: "Ordered that court adjourn until court in Course." This was signed by the judge. It appears that between this day and the next succeeding term of court an order was drawn in full allowing Murphy & Evers, the attorneys who represented appellees, $300 for their services, to be taxed as cost in the action. On the first day of the succeeding term, and before the orders of the last day of the preceding term were read and approved by the court, the appellants filed their affidavits, and moved the court that it refuse to approve the order allowing appellees' counsel the $300, for the reason, as they claim, that they had employed their own counsel to represent them in the litigation, and that it would be unjust for...