Mitchell v. Chenault

• Decision Date: 06 December 1901
• Citation: 65 S.W. 447,112 Ky. 267
• Parties: MITCHELL et al. v. CHENAULT. [1]
• Court: Kentucky Court of Appeals

65 S.W. 447

112 Ky. 267

MITCHELL et al. v. CHENAULT. ^[1]

Court of Appeals of Kentucky.

December 6, 1901

Appeal from circuit court, Montgomery county.

"To be officially reported."

Action by C. C. Chenault, receiver, against R. A. Mitchell and L. T Chiles, upon the bond of R. A. Mitchell as assignee. Judgment for plaintiff, and defendants appeal. Reversed.

A. T Wood, for appellants.

Hazelrigg & Chenault, for appellee.

DU RELLE, J.

The appellee, as receiver of the Montgomery circuit court brought suit against appellant Mitchell, as assignee of M McCloskey, and L. T. Chiles, surety upon Mitchell's bond for $539.03, alleging that at the April term, 1900, an order was entered directing Chenault, as receiver, to collect from Mitchell that sum, and directing, further, that if not paid within 10 days the receiver should institute a suit upon Mitchell's bond; that, though demand had been made, the sum had not been paid; that Mitchell had received it as assignee of McCloskey's estate, having duly qualified as assignee, and executed bond with Chiles as surety; and that a judgment had been rendered at the April term directing Mitchell to pay the amount. The order entered in the case of the Standard Oil Company et al. v. M. McCloskey, etc., a copy of which was filed with the petition in this case, recites "This day came the plaintiff, and moved the court for an order directing that R. A. Mitchell, as assignee of M. McCloskey, pay over to the receiver of this court the sum of $539.03, it being the amount paid by the receiver herein and receiver's commission to G. W. Sydner by reason of amount found due by R. A. Mitchell to Sydner's estate, as having been used by said R. A. Mitchell as assignee of McCloskey, said R. A. Mitchell, as assignee of M. McCloskey, never having been charged with or accounted for any part of same in his settlements as assignee of McCloskey; and being submitted to the court, and the court advised, sustains said motion, and said R. A. Mitchell, as assignee of M. McCloskey, is now charged with said sum of $539.03, with interest from this date until paid, and said R. A. Mitchell is ordered and directed to pay the same over to the receiver of this court within ten days from this date, and, if not then paid, said receiver may institute an action upon the bond of R. A. Mitchell to recover same, and said receiver is directed to do so. To all of which said R. A. Mitchell, assignee, excepts." A copy of Mitchell's bond as assignee was also filed. A general demurrer to the petition having been overruled, an answer was filed by Chiles, admitting the entry of the order in the McCloskey case; denying that any judgment was ever entered; averring that the order was void, and that the money paid by Mitchell in settling the McCloskey estate was received by him as assignee of Sydner, and was never assets of the McCloskey estate. He also attempted to plead the seven-year statute of limitations. Mitchell also filed an answer setting up substantially the same defenses, with the exception of the statute of limitations. Demurrers were filed and sustained to the separate answers of...