Husbands v. Fidelity & Deposit Co.

• Decision Date: 06 June 1911
• Citation: 144 Ky. 93,137 S.W. 855
• Parties: HUSBANDS v. FIDELITY & DEPOSIT CO. et al.
• Court: Kentucky Court of Appeals

137 S.W. 855

144 Ky. 93

HUSBANDS v. FIDELITY & DEPOSIT CO. et al.

Court of Appeals of Kentucky.

June 6, 1911

Appeal from Circuit Court, McCracken County.

Action by Gip Husbands, receiver, against the Fidelity & Deposit Company and others. From a judgment for plaintiff, both parties appeal. Reversed and remanded, with directions.

J. G Husbands and William Marble, for appellant.

J. D Mocquot and J. C. Flournoy, for appellees.

CARROLL J.

The Paducah Building Trust Company was organized in 1893 and continued in business until June, 1899, when it made a general deed of assignment to R. G. Caldwell for the benefit of its creditors. Caldwell accepted the trust and executed bond in the sum of $10,000, with the Fidelity & Deposit Company of Maryland as his surety. In March, 1901, on motion of the Fidelity & Deposit Company of Maryland, the assignee was required to give other surety on his bond as assignee and thereupon the appellee Ætna Indemnity Company became his surety on a bond for $10,000. Afterwards, in December, 1903, Caldwell was removed as assignee by the McCracken circuit court, and an order was entered directing him to turn over to Husbands, as receiver, all assets and property in his hands. It seems that the assignee did not comply with this order of court, and in December, 1903, this action by direction of the court was brought by Husbands as receiver against Caldwell and his sureties, the Fidelity & Deposit Company and the Ætna Indemnity Company, seeking to recover a large amount of money alleged to be due by Caldwell as assignee. Pending this action Caldwell died, but the suit was prosecuted against the sureties, and in 1909 a judgment was rendered against them for $3,365.74, with interest from December 23, 1903. The receiver, Husbands, not being satisfied with the amount of this judgment, has brought the case to this court; and the appellees, also complaining, have prosecuted a cross-appeal.

As the case will be reversed so that it may be prepared for trial, we will only dispose of such legal questions as are presented by the record, leaving untouched the questions of fact.

1. The appellees in due time made a motion in this court to dismiss the appeal because the appellant had failed to file in the office of the clerk of the McCracken circuit court the schedule required by the Civil Code. It appears from the record that the judgment appealed from was a rendered in March, 1909, and an appeal was prayed and granted in the lower court, but the appellant did not prosecute that appeal within the time provided by the Code, and so it was abandoned. On October 15, 1909, after the time in which the record should have been filed in this court on the appeal taken in the lower court, the appellant filed in the office of the clerk of the McCracken circuit court a schedule and gave due notice to appellees of its filing, but they did not file any schedule. This schedule directed the clerk to copy only a part of the record. On August 20, 1910, a copy of the judgment was filed in this court, and an appeal granted by the clerk of this court. After the appeal was granted by the clerk of this court no schedule was filed in the lower court but the record filed in this court when the appeal was granted by the clerk was made out in accordance with the schedule filed in October, 1909. It is provided in section 737, subd. 7, Civ. Code, that: "If the appellant, to whom an appeal is granted by the clerk of the Court of Appeals, choose to file a transcript of a part only of the record, he shall file in the office of the clerk of the inferior court a schedule similar to that above described; and shall cause notice of the filing thereof to be served on the appellees, and to be returned to said office, as a summons is directed to be served and returned. Within twenty days after the service of such notice, or at any subsequent time before completion of the transcript ordered by the appellant, and not afterwards, the appellee may file in said office a schedule similar to that above described if he wish to take a cross-appeal." No brief is filed for the appellee on the motion to dismiss the appeal, but we presume the motion is based on the ground that the appellant after the appeal was granted by the clerk of this court should have filed a schedule with notice. The Code does not specify whether the schedule in cases like this shall be filed before or after the appeal is granted by the clerk of this court, merely providing that it shall be the duty of the appellant to file a schedule. As the Code does not direct the time in which a schedule shall be filed, we think that a party who desires to taken an appeal before the clerk of this court may file in the office of the clerk of the lower court a schedule with notice before he prays the appeal, and that the transcript made out in accordance with this schedule may be filed when the appeal is taken. The fact that the party desiring to prosecute an appeal in this court files a schedule with notice is information to the adverse party that he will prosecute an appeal, and thereupon the adverse party may if he so desires file his schedule. It is not necessary that the party desiring to prosecute an appeal should delay filing his schedule until after the appeal has been granted by the clerk of this court, although we do not mean to hold that this practice might not be allowable if the transcript made out in accordance with the schedule so filed was lodged with the...