Jackson v. Evans

Citation284 Ky. 748,145 S.W.2d 1061
PartiesJACKSON et al. v. EVANS et al.
Decision Date13 December 1940
CourtCourt of Appeals of Kentucky

Appeal from Circuit Court, Monroe County; J. C. Carter, Judge.

Action by Alice Lee Jackson and others against Fred Evans and others, sureties on the bond of the named plaintiff's former guardian, to recover guardianship funds.

From a judgment dismissing plaintiff's petition, plaintiff appeals.

Affirmed.

James C. Carter, Jr., of Tompkinsville, for appellant.

Hebron Lawrence, of Tompkinsville, for appellees.

RATLIFF Chief Justice.

In 1918 the appellant, then an infant under 21 years of age inherited some money from a deceased brother and her father. W. T. Gillenwater was appointed statutory guardian for appellant and executed bond as such guardian with appellees Fred Evans and J. S. Emmert, as surety on said bond. Appellant attained the age of 21 years in June, 1923, and in September of the same year her guardian made final settlement with the county court of Monroe county showing that he had in his hands the sum of $571.70 of the trust fund belonging to his ward, the appellant, and was ordered by the county court to pay said sum to his said ward.

In April, 1938, the appellant, as plaintiff below, brought this action in the Monroe circuit court to recover of appellees as surety on said guardian bond the said sum of money due her with interest thereon from September 8, 1923, the date of the final settlement. She alleged in her petition that W. T Gillenwater, her father and guardian, had failed and refused to pay her any part of said money and that in 1937 the guardian died leaving no estate out of which she could collect her money, and prayed that she recover the said sum of appellees as surety on said guardian bond.

Appellees filed their joint and separate answer admitting the execution of the guardian bond and that they became sureties thereon and also admitted that the guardian was indebted to appellant in the sum stated in the petition. They further averred that they had no knowledge or belief to know whether or not said sum or any part of same had been paid to the plaintiff and therefore, denied that same was unpaid or that they were indebted to the plaintiff in the sum sued for or any amount. In paragraph 2 of the answer appellees alleged that appellant was about 35 years of age and that her cause of action accrued September 8, 1923, when final settlement was made by her guardian and the amount owing her was definitely ascertained; that her cause of action set out in the petition did not accrue within "five years nor seven years nor fourteen years before the commencement of this action", and pleaded and relied upon the statute of limitations as a bar to plaintiff's right to recover.

Appellant filed her reply denying the allegations of the answer, and in paragraph 2 of the reply affirmatively pleaded that prior to September 8, 1923, and prior to her attaining the age of 21 years in June, 1923, she was married to Clint Jackson, and is still married, and at the time of her marriage she was an infant and under 21 years of age and was not permitted on account of her disability of infancy and coverture to prosecute this action, and that she has been laboring under said disability from the time of her said marriage until January 1, 1937, at which time by Act of the Legislature (Chapter 44 of 1934 Acts) amending section 2525 of the Kentucky Statutes, she was permitted to institute and prosecute this action, and that her cause of action accrued on January 1, 1937, the effective date of the amendment, and that she instituted her action five years next before the effective date of the amendment; and there was no person authorized by law to commence or institute this action until January 1, 1937.

The court sustained a demurrer to paragraph 2 of the reply and plaintiff failing to plead further her petition was dismissed. Hence this appeal.

It is insisted in brief for appellant that since the amendment to Section 2525 did not become effective until January 1, 1937, appellant was still under disability of coverture until the effective date of the statute, and that neither she nor anyone for her could have instituted the action before January 1, 1937. It is further argued that under the provisions of sections 2510, 2511 and 2512, Kentucky Statutes, 1930 Edition, which were also repealed by the 1934 Act, Chapter 43, appellant had three years after January 1, 1937, in which time to institute her action and that since the action was instituted within less than three years from that date the court erred in sustaining the demurrer to paragraph 2 of the reply.

We cannot agree with counsel in his insistence that appellant could not have instituted her action because of her disability of coverture, any time after September 8, 1923. The money sued for being the property of appellant, she might have instituted...

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10 cases
  • State of Minn. ex rel. Hove v. Doese
    • United States
    • South Dakota Supreme Court
    • October 7, 1992
    ...378 So.2d 348 (1979); Sanchez v. Access Associates, 179 Ill.App.3d 961, 128 Ill.Dec. 813, 535 N.E.2d 27 (1989); Jackson v. Evans, 284 Ky. 748, 145 S.W.2d 1061 (1940); Ayo v. Control Insulation Corp., 477 So.2d 1258 (La.Ct.App.1985), cert. denied, 481 So.2d 1349 (1986); Dobson v. Quinn Freig......
  • School Bd. of City of Norfolk v. U.S. Gypsum Co.
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    • Virginia Supreme Court
    • September 4, 1987
    ...494-95 (1981); Jackson v. American Best Freight System, Inc., 238 Kan. 322, 324-25, 709 P.2d 983, 985 (1985); Jackson v. Evans, 284 Ky. 748, 751-52, 145 S.W.2d 1061, 1062 (1940); Ayo v. Control Insulation Corp., 477 So.2d 1258, 1260 (La.Ct.App.1985), cert. denied, 481 So.2d 1349 (1986); Dob......
  • People v. Frazer
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    • California Supreme Court
    • August 30, 1999
    ... ... other grounds sub nom. Slate v. Zitomer (1975) 275 Md. 534, 341 A.2d 789 ; Haase v. Sawicki (Wis.1963) 121 N.W.2d 876, 878 ; Jackson v. Evans (1940) 284 Ky. 748, 145 S.W.2d 1061, 1062; In re Swan's Estate (1938) 95 Utah 408, 79 P.2d 999; Cathey v. Weaver (1922) 111 Tex. 515, ... ...
  • Givens v. Anchor Packing, Inc.
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    • Nebraska Supreme Court
    • March 15, 1991
    ...1978); D.Z.M. v. D.A.G., 41 Colo.App. 377, 592 P.2d 1 (1978); Haase v. Sawicki, 20 Wis.2d 308, 121 N.W.2d 876 (1963); Jackson v. Evans, 284 Ky. 748, 145 S.W.2d 1061 (1940); In re Swan's Estate, 95 Utah 408, 79 P.2d 999 (1938); Wasson v. State ex rel. Jackson, 187 Ark. 537, 60 S.W.2d 1020 (1......
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