Gerrein's Adm'R v. Michie, &C.

• Decision Date: 09 March 1906
• Court: Kentucky Court of Appeals
• Parties: Gerrein's Admr. v. Michie, &c.

Page 250

122 Ky. 250

Gerrein's Admr. v. Michie, &c.

Court of Appeals of Kentucky.

March 9, 1906.

Appeal from Campbell Circuit Court.

A. S. BERRY, Circuit Judge.

Judgment for defendants, plaintiff appeals. Reversed.

HODGE & WOLFF for appellant.

H. C. DUMONT of counsel.

THOS. L. MICHIE, PHIL. J. RYAN, ALBERT BERRY, JR., MATT MOORE and A. M. CALDWELL for appellees.

OPINION BY CHIEF JUSTICE HOBSON—Reversing.

Elizabeth Gerrein sued her husband, Andrew Gerrein, for divorce and alimony in the Kenton Circuit Court. On February 26, 1895, the following judgment was entered in the action: "It appears that the plaintiff was a sickly woman with six children whom she has borne, four living with her of whom the eldest, a girl of sixteen years of age who has the household work to do as well as care for her mother, a boy fourteen years old earning one and one-half dollars per week, and two girls aged eleven and six respectively. The husband has treated her with extreme cruelty and his children with indifference; he earns fourteen ($14.00) dollars a week regularly and has some money. The wife wants a divorce from bed and board, the custody of the children, and that he pay her sufficient alimony to help her support herself and the children, to all of which she is entitled. Therefore, it is adjudged that plaintiff is divorced from bed and board of defendant, and she is given the custody of the said four children and may collect their earnings as against the defendant, and until the further orders of this court he will pay into this court thirty ($30.00) dollars on the first of each calendar month for the plaintiff, beginning March 1, 1895. He will pay the costs herein, in which will be taxed twenty-five ($25.00) dollars for plaintiff's attorney." Andrew Gerrein made certain payments on the judgment between April 1, 1895, and September 28, 1896. He then ceased to pay anything. Rules were taken out on behalf of the wife, but they were ineffective. Finally he married again, and his second wife died leaving a will by which she devised certain property to him. After this Elizabeth Gerrein began steps to enforce her judgment, but before much was done she died on October 29, 1904. Her son Phillip Gerrein qualified as her administrator, and on February 18, 1905, began this action in the Campbell Circuit Court, setting out the above facts, and making as defendants to the action Andrew Gerrein and certain creditors of his to whom he was indebted, and whom he had secured by certain contracts which the plaintiff alleged were fraudulent and made for the purpose of defeating the collection of his judgment. The defendants demurred to the petition. Their demurrer was sustained, and the plaintiff appeals.

The action of the court in sustaining the demurrer is sought to be sustained upon the ground that the death of Elizabeth Gerrein extinguished her right to alimony, and that after her death the claim can only be enforced for the benefit of bona fide creditors who gave credit to her during her lifetime in the belief that the alimony would constitute a fund out of which their claims would be paid. The rule contended for applies where there has been no judgment in favor of the wife. Gaines v. Gaines' Ex'r, 9 B. Mon. 295, 48 Am. Dec. 425. But a judgment in favor of the wife for alimony stands just like any other judgment. The judgment in question was not one upon which an execution could issue. From...