Jeffers v. Taylor

• Decision Date: 14 December 1917
• Citation: 178 Ky. 392,198 S.W. 1160
• Parties: JEFFERS v. TAYLOR. JEFFERS v. VICARS.
• Court: Kentucky Court of Appeals

198 S.W. 1160

178 Ky. 392

JEFFERS v. TAYLOR.

JEFFERS v. VICARS.

Court of Appeals of Kentucky.

December 14, 1917

Appeal from Circuit Court, Pike County.

Actions by J. W. Jeffers against W. B. Taylor and J. W. Vicars. Plaintiff's motions for new trial overruled, and he appeals. Judgment affirmed in each case.

Stratton & Stephenson, of Pikeville, H. V. McChesney and Scott &amp Hamilton, all of Frankfort, for appellant.

Cline &amp Steele, of Pikeville, for appellees.

MILLER J.

On September 22, 1911, the appellee W. B. Taylor bought 300 shares of the capital stock of the Central Life Insurance Company, for which he paid $450 in cash, and gave the company his note for $2,550, the balance of the purchase money. About the same time the appellee J. W. Vicars bought 500 shares of the same issue of stock, for which he executed to the company his note for $4,250.

On August 9, 1913, Taylor and Vicars filed separate actions in the Pike circuit court against the insurance company to cancel their notes, upon the ground of fraud committed by the company's agent in making the sales to them. They obtained judgments in the circuit court, but upon appeal this court reversed the judgments for the reason that neither petition stated a cause of action. See Central Life Insurance Co. v. Taylor, 164 Ky. 844, 176 S.W. 373; Central Life Insurance Co. v. Vickers, 164 Ky. 848 176 S.W. 375. Upon the return of the actions to the circuit court the petitions were dismissed pursuant to the mandate of this court.

On January 15, 1916, the appellant, J. W. Jeffers, was appointed receiver of the Central Life Insurance Company; and, on March 3, 1916, he filed these actions against Taylor and Vicars in the Pike circuit court to recover judgments upon the notes which they had given the company. Taylor was clerk of the Pike circuit court.

The petitions were prepared in Frankfort by Scott & Hamilton, the attorneys for the receiver, and were by them, on May 2, 1916, forwarded by mail to the clerk of the Pike circuit court at Pikeville, accompanied by a letter to the clerk requesting him to file the petitions, and inclosing him the state tax thereon. The letter to the clerk also contained this sentence:

"Please have summons issued at once, and send us copies of demurrers and pleadings that may be filed in the cases, and advise us when these cases are set down for trial."

Taylor filed the petitions on May 3d, and issued summons thereon which were duly served. On May 17, 1916, Taylor and Vicars filed their answers traversing the allegations of the petitions and charging fraud in the sale of the stock; and by way of counterclaim Taylor asked that his note be canceled, and that he have judgment for the $450 which he had paid in cash.

On July 8, 1916, the forty-eighth day of the May term, and on the motions of the defendants, the allegations of the answers were taken as true, and the notes were canceled upon the ground that they had been obtained by fraud. Taylor did not advise Scott & Hamilton that he and Vicars had filed their answers or that the order of July 8th canceling the notes had been entered.

On October 13, 1916, Scott & Hamilton mailed to Taylor orders dismissing the cases against Taylor and Vicars without prejudice, asking Taylor to show the orders to the defendants or their attorneys, and when they had been entered to return to the attorneys the exhibits filed with the petitions.

Three days later, on October 16, 1916, Taylor and Vicars moved the court to submit the cases; and, no objection being made, the court, on October 18th, entered a judgment dismissing the petition at the plaintiffs' cost, and struck the cases from the docket. Not hearing from Taylor, appellant's attorneys wrote him on October 26th, inquiring if the orders of dismissal had been received and entered, and again requesting that the exhibits be returned. To this further request Taylor paid no attention. It was not until January 26, 1917, that appellant's counsel learned that the notes had been canceled and the actions dismissed. In the meantime the September term, 1916, of the court had intervened and expired.

At the following February term of the Pike circuit court appellant entered motions to set aside the judgments, and filed his grounds for a new trial upon the ground of fraud practiced by the defendants and unavoidable casualty and misfortune which had prevented him and his attorneys from attending the trial. In support of his motions he filed several affidavits setting forth the correspondence with Taylor and the facts as above stated, and alleged that Taylor and Vicars were acting in concert in all that was done. Vicars filed his affidavit traversing the charges of fraud; but, as Taylor was the principal actor, we will confine our observations upon the facts relating to his activities.

Taylor filed his own affidavit, in which he denied that he had never received a letter from plaintiff's attorneys requesting him to send them copies of the pleadings filed in the clerk's office by the defendant, or that he had received a letter requesting him to notify plaintiff's attorneys of the steps taken in the cases. This is rather a remarkable statement in view of the fact that Scott & Hamilton's letter of May 2d to Taylor inclosing the petitions expressly requested Taylor, as clerk, to send them copies of the defendants' pleadings, and to advise them when the cases would be set down for trial. That Taylor received the letter is conclusively shown by the fact that he received the petitions and filed them as requested. In his affidavit Taylor further states that it has never been customary for the circuit court clerk of Pike county to notify nonresident practitioners of the progress of...