Patterson v. Miracle

• Decision Date: 13 March 1934
• Citation: 69 S.W.2d 708,253 Ky. 347
• Parties: PATTERSON v. MIRACLE et al.
• Court: Kentucky Court of Appeals

69 S.W.2d 708

253 Ky. 347

PATTERSON v. MIRACLE et al.

Court of Appeals of Kentucky

March 13, 1934

Appeal from Circuit Court, Knox County.

Suit by G. W. Miracle against the Queen Insurance Company and the New York Underwriters Insurance Company, wherein judgment was entered for plaintiff, and application was thereafter made by insurance company for order of disbursement of proceeds of policy to satisfy certain claims of plaintiff's creditors, and the Rathfon-Scent Company and J. S. Patterson filed their petitions as such creditors for payment of their claims out of insurance proceeds. From an adverse judgment J. S. Patterson appeals.

Affirmed.

H. H Owens, of Barbourville, for appellant.

Robsion & Sampson, of Barbourville, for appellees.

RICHARDSON Justice.

G. W Miracle, the Queen Insurance Company, and the New York Underwriters Insurance Company engaged in litigation involving the liability of the latter on certain insurance policies. Miracle in the end won. The insurance companies thereupon made application to the court for an order of disbursement of the proceeds of the policies, setting out certain claims of creditors of Miracle, asserted against them, because of their liability to him on the insurance policies. One was the debt of the Rathfon-Scent Company, evidenced by two orders on the Queen Insurance Company, amounting to $483.94. The Rathfon-Scent Company filed its petition to be made, and was made, a party to the procedure, wherein it alleged Miracle's indebtedness to it of $483.94 was for lumber used by him in the construction of the building destroyed by fire and covered by the insurance policy of the Queen Insurance Company; it had a materialman's lien on the property at the time it was destroyed, and Miracle had executed and delivered to it on the 27th day of March, 1926, orders addressed to it which it had accepted in writing, signed by its agent, and by reason of the orders and its acceptance the Queen Insurance Company was indebted to it the sum of $483.94 with interest at 6 per cent. per annum from May 27, 1926. It prayed judgment accordingly.

On the 22d day of June, 1933, J. S. Patterson filed in the office of the circuit clerk a pleading denominated "amended petition," in which it was recited he had obtained a judgment against Miracle and an attachment had been sustained, but through inadvertence it had been returned executed on the New York Underwriters Insurance Company, when in fact it had been executed on the agent of the Queen Insurance Company. This amended pleading "adopts the allegations set out in his petition." The record presented is a partial one. We do not find the original petition alluded to in Patterson's amendment. However, the judgment in favor of Patterson against Miracle, for $800.07 with interest from December 1, 1926, until paid, and costs, is embraced by the record, and it recites "the attachment set out herein on April 6th, 1926, is sustained." The judgment from which this appeal was taken decreed that the orders of Miracle addressed to, and accepted by the agent of, the Queen Insurance Company for the amount of Rathfon-Scent Company's debt were valid, and directed their payment. It further directed that after their payment Patterson's debt, secured by an attachment lien, be paid out of the remainder of the proceeds of the policy of the Queen Insurance Company, to which Patterson objected.

The trial court entered of record his finding of facts and decisions of law. It appears from it, oral evidence was heard in open court concerning the agency of H. M. Oldfield of the Queen Insurance Company at the date of his indorsement of its acceptance of the Miracle orders, binding it to pay same to the Rathfon-Scent Company out of the proceeds of its policy to Miracle.

No finding of facts and decisions of law, nor motion and grounds for a new trial, are necessary or required in an equity action [[ Commonwealth v. Railroad Companies, etc., 95 Ky. 60, 23 S.W. 868, 15 Ky. Law Rep. 449; Keaton, etc., v. Sublett, etc., 109 Ky. 106, 58 S.W. 528, 22 Ky. Law Rep. 631; Board of Drainage Com'rs of Ballard County et al. v. Ill. Cen. R. R. Co. et al., 202 Ky. 735, 261 S.W. 236; Allen v. Salyers, 225 Ky. 30, 7 S.W.2d 509]; but where the law and facts are submitted to the court in an action at law, without the intervention of a jury, on the request of either party, it is the duty of the court to state in writing its conclusion of facts, generally for the plaintiff or the defendant, separately from the conclusions of law [ Boone, Foreman & Lackey v. Wahl, 226 Ky. 773, 11 S.W.2d 915]. This duty of the losing party to make the request as well of the court to comply therewith is mandatory, except only where neither the law nor the facts, nor both combined, authorize the judgment rendered. Commonwealth v. King, 86 Ky. 436, 6 S.W. 124, 9 Ky. Law Rep. 653. Where the questions of law and facts are submitted, and the court, pursuant to the request of one of the parties, states in writing its conclusions of law and facts separately, as provided by section 332 of the Civil Code of Practice, there must be an exception reserved to its finding of fact to enable this court to pass upon same. A motion for a new trial, in the absence of such an exception, will not save the party's rights in this court. American Mutual Aid Soc. v. Bronger, 91 Ky. 406, 15 S.W. 1118, 12 Ky. Law Rep. 971. However, no separate finding of law and facts is necessary to an appeal. And where only conclusions of law are complained of, an appeal may be prosecuted without bringing the evidence, the only question then is whether the court entered the proper judgment on the pleadings. Board of Drainage Com'rs of Ballard County et al. v. Ill. Cen. R. R. Co., supra; Allen v. Salyers, supra.

Patterson saved an exception to the court's finding of facts and decisions of law, but is here without the evidence heard on the trial. He filed no motion and grounds for a new trial. His failure to do so...