Jenkins v. Berry

• Decision Date: 17 December 1904
• Citation: 119 Ky. 350,83 S.W. 594
• Parties: JENKINS et al. v. BERRY, Judge, et al.
• Court: Kentucky Court of Appeals

83 S.W. 594

119 Ky. 350

JENKINS et al. v. BERRY, Judge, et al.

Court of Appeals of Kentucky.

December 17, 1904

"To be officially reported."

Petition for a writ of prohibition by J. O. Jenkins and others against A. S. Berry, judge of the Campbell circuit court, and another. Petition granted.

Jno. T Hodge and Otto Wolfe, for plaintiffs.

Harvey Myers and C. L. Raison, for defendants.

SETTLE J.

By their petition filed in this court, the plaintiffs, J. O Jenkins, John L. Phythian, and W. E. Senour, trustees of the Speers Hospital, situated in the city of Dayton, Campbell county, Ky. ask a writ of prohibition against the defendants A. S. Berry, judge of the Campbell circuit court, and C. L Raison, Jr., amicus curiæ of the Campbell circuit court, preventing them from interfering with the plaintiffs' control of the Speers Hospital, and from attempting to remove them as such trustees. It appears from the statements of the petition that Elizabeth Speers, then a resident of Campbell county, died testate, leaving a large estate, which, after the payment of certain specific legacies named in her will, she by that instrument devised to three trustees, B. K. Rockford, C. B. Schoolfield, and W. G. Pickering, in trust for the "establishment and maintenance" of the hospital in question. So much of the will as relates to the trust is contained in the nineteenth clause thereof, which is as follows: "It is my will that my said executors after the payment of my debts, and after the payment of those specific legacies which are in no way contingent, and after provision for all contingent legacies, and the support and education of the said Bina Elizabeth Speers Makibben, as hereinbefore set out, and the payment of all costs and expenses incident to the settlement of my estate convey and transfer the entire balance of my estate, real and personal and mixed, of every kind wherever situated, to Dr. B. K. Rockford, Dr. C. B. Schoolfield and Wm. G. Pickering, as trustees in trust for the establishment and maintenance of a hospital in the city of Dayton, in Campbell county, Kentucky. The said hospital to be erected, maintained and conducted in such manner and upon such plan as in their judgment would do the greatest good. Said Trustees shall annually report all their acts and doings to the highest court in said county having original equitable jurisdiction and all vacancies in said trustees shall be filled by said court. Said court shall require from said trustees proper bonds for the performance of their duties and it may allow them annually out of the trust funds a just and fair compensation for their labor. If any legacy should lapse, or if there should remain in any fund set apart for any purpose in money after the execution of said purpose, then all such monies and all monies or property which from any cause may at any time be in or come to the hands of my said executors after carrying out the provisions of this will other than said provisions as to said hospital, shall be paid over to said trustees and shall become a part of said hospital trust fund."

It appears from the record that the trustees named in the will and others that succeeded them resigned, and finally the appointment fell upon the plaintiffs, who are now the duly qualified and acting trustees of the will of Elizabeth Speers, and, as such, in full control of the hospital and trust fund. It further appears that the former trustees made annual reports to the Campbell circuit court of their management of the Speers Hospital, including a statement of its financial condition, and that the present trustees have done likewise, except that no report was made by them for the present year until November 19, 1904. It also appears that the defendant A. S. Berry, judge of the Campbell circuit court, in an interview with John E. Waterhouse, the secretary of plaintiffs, made complaint of their report for the previous year, which had been filed in the Campbell circuit court several months theretofore, and before he became judge of that court, and directed the secretary to withdraw the report and make it conform to certain suggestions then made by him. This direction was followed by the secretary, and the report placed in the hands of an expert accountant, with instructions to make full investigation of the accounts of the trustees, and of their management of the affairs of the Speers Hospital. Before the work of the accountant was completed, and, as shown by his affidavit, before it could be completed, the defendant Berry, as judge of the Campbell circuit court, upon his own motion, on the 9th day of November, 1904, made orders awarding rules against the plaintiffs and their secretary, respectively, returnable November 12th, requiring the former to show cause why they, as trustees of the Speers Hospital, had not furnished a satisfactory report of the business and condition of the hospital, and the latter to return the last report of the trustees, which he had withdrawn by the direction of the defendant Berry as judge. The rules were duly issued and served upon the parties. The secretary filed response accompanied by the report demanded of him, explaining in the response the delay in filing the report. Thereupon the rule against the secretary was dismissed, and the report referred to the defendant C. L. Raison, Jr., as amicus curiæ of the court, to which, and the order awarding the rule against him, the secretary, John E. Waterhouse, excepted. In obedience to the rule against them, the trustees appeared in the court of the defendant Berry, judge, and entered motion, supported by the necessary affidavit, to require him to vacate the bench, in order that a special judge might hear the defense to the rule, which motion was overruled, and an exception taken thereto. Thereupon the trustees demurred to the jurisdiction of the court, and upon the further ground that the issue of the rules was without authority of law, and the orders therefor void, because there was no action or proceeding against them then or at any time pending in the Campbell circuit court, and no application for the rules had been made by any one having an interest in the trust estate, or a right to ask such rules.

The argument upon the demurrer to the rule against plaintiffs was set for hearing November 21st. On the 14th day of November the defendant Berry, as judge of the Campbell circuit court, upon his own motion, made another order, awarding a second rule against the plaintiffs, returnable November 21st, whereby they were required to show cause why they had not made and filed their annual report as trustees of the Speers Hospital for the year beginning July 31, 1903, and ending August 31, 1904. This rule was likewise served upon them.

On November 19, 1904, plaintiffs filed what purported to be a complete report of their doings as trustees of the Speers Hospital from August 31, 1903, to August 31, 1904, which report purported to contain a full showing of all monies received and disbursed by them, and also a comparative financial statement of the condition of the hospital from its foundation, prepared by one Guy Kenneday, a skilled accountant, whom they had employed for the purpose of making a thorough examination of all the affairs of the institution. Plaintiffs also filed with their report a response to the rule of November 14th, wherein was set forth the same grounds of objection and resistance to the rule that were presented by their demurrer to the former rules. The response was accompanied by the affidavit of Kenneday, the accountant showing that his work in connection with the report was only completed November 18th, the day before the filing of the report, and that plaintiff could not, therefore, have filed the report sooner. On November 21st the defendant Berry made an order referring the last-named report to C. L. Raison, Jr., the amicus curiæ. But neither this order, nor the one referring to him the report returned by plaintiffs' secretary, John E. Waterhouse, contained any instructions as to what the amicus curiæ should do with them, nor do they require of him any report thereon. It is averred in the petition that the amicus curiæ is the attorney of a former trustee...