Hilton v. Hilton's Adm'r

• Decision Date: 17 April 1901
• Citation: 62 S.W. 6,110 Ky. 522
• Parties: HILTON et al. v. HILTON'S ADM'R et al. [1]
• Court: Kentucky Court of Appeals

62 S.W. 6

110 Ky. 522

HILTON et al. v. HILTON'S ADM'R et al. ^[1]

Court of Appeals of Kentucky.

April 17, 1901

Appeal from circuit court, Simpson county.

"To be officially reported."

Action by J. L. Hilton and others against W. I. Hilton's administrator and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

B. F Proctor and Proctor & Herdman, for appellants.

Roark &amp Finn, for appellees.

O'REAR J.

The petition alleges the death of W. I. Hilton in 1889 in Simpson county, and the appointment and qualification of appellee J. W. Baird as his administrator. It shows that the appellants had made a settlement of his accounts, but when or where is not shown; and the first four paragraphs of the petition are devoted to setting up matter looking to a surcharge of the settlement, and for a more complete and thorough accounting by the administrator. The remaining six paragraphs set out entirely different and independent causes of action, each against separate and distinct individuals none of whom are involved by or concerned in the matters set up in any other paragraph. The following paragraph (5) is substantially, if not literally, the language of all the others, save the name or names of the parties accused. It is as follows: "Par. 5. These plaintiffs say further that they are informed and charge that defendant Mark Whitesides has of said assets belonging to said estate the sum of--dollars, which he kept and appropriated to his own use and failed to deliver same to said Baird as administrator, and which said administrator should have recovered as aforesaid. They say that they cannot tell, and have no means of obtaining information, what amount of bonds said Whitesides thus appropriated without the aid and assistance of these defendants, who had the means of ascertaining the amount at the time; and said Whitesides alone, as far as they are informed, knows the disposition which he made of said bonds, and he is called on to disclose all his acts and doings touching the property of said Hilton." A motion to require plaintiffs to elect which of the several causes of action sued on they would prosecute, was entered, and sustained by the court. Plaintiffs then tendered an amended petition, in which they included all their causes of action set up in their petition in one paragraph, except as to defendant Mark W. Whitesides; they electing, they said, not to prosecute the action against him. The court, on defendants' objection, declined to allow this amendment to be filed, and plaintiffs excepted. Thereupon the court entered this order: "The plaintiffs, by attorneys, having appeared in open court and having refused to elect, the court, upon its own motion, hereby strikes from said petition the causes of action against all the defendants except the defendant J. W. Baird, to which order of the court plaintiffs object and except; and the plaintiffs by attorneys in open court then refused to proceed further, and declined to prosecute said causes against said Baird. It is therefore ordered and adjudged by the court that the plaintiffs' petition be dismissed, and the...