Ramsey v. Keith's Adm'r

• Decision Date: 08 October 1903
• Citation: 76 S.W. 142
• Parties: RAMSEY v. KEITH'S ADM'R et al.
• Court: Kentucky Court of Appeals

76 S.W. 142

RAMSEY v. KEITH'S ADM'R et al.

Court of Appeals of Kentucky.

October 8, 1903

Appeal from Circuit Court, Fayette County.

"Not to be officially reported."

Application by Lilly Keith's administrator for the sale of realty to pay debts. From a judgment directing the sale, Layton J Ramsey, by O. B. Ambrose, his corresponding attorney appeals. Reversed.

Z Gibbons and O. B. Ambrose, for appellant.

L. J Moore, for appellees.

BARKER J.

Lilly Keith died intestate, domiciled in Fayette county, Ky. George C. Morgan was appointed and qualified as administrator of her estate. The decedent was a widow at her death, having been twice married. She left two infant sons, Broadwell N. Keith and Layton J. Ramsey, who are her only children and heirs at law. Her estate consisted of a small house and lot in Lexington, Ky. worth about $1,000. She left no personal property whatever. At her death the decedent seems to have been indebted to the state of Kentucky and to the city of Lexington for taxes, and to several persons in sums which, together with her funeral expenses, amounted, in the aggregate, to more than $800. Her administrator instituted this action for the purpose of selling her real property, paying her debts, and settling the estate. Several of her creditors and her two sons were made defendants to the action. Appellant, Layton J. Ramsey, the oldest of the two sons, resided in Florida, and was proceded against as a nonresident. The case was referred to the commissioner of the court to advertise for creditors and to report on indebtedness. It being made to appear to the court, pending the litigation, that the two sons of the decedent were infants, and that they had no guardian in this state, the chancellor appointed for them a guardian ad litem, who made report that he had carefully examined the case, and was unable to make an affirmative defense, and that he joined in the prayer of the petition for the sale of the real property. Afterwards, on the 30th day of June, 1902, a judgment was entered confirming the report of the commissioner as to the indebtedness of the estate, ascertaining that the decedent left no personal property to pay the claims proved before the commissioner, that a necessity existed for the sale of the real property to pay the indebtedness, ordering the commissioner to sell the house and lot left by the decedent at public outcry, and to report his acts. From this judgment the defendant, Layton J. Ramsey, by O. B. Ambrose, the corresponding attorney appointed for him at the time the warning order was made, has appealed to this court. Two grounds are urged in support of a reversal: First, the insufficiency of the report of the corresponding attorney; and, second, the illegality of the claim of Mary O'Neill, allowed.

It is urged that the report made by the corresponding attorney is insufficient, in that it fails to recite that he had carefully examined the case before he made his report; and that, under the principle enunciated in Dineen v. Hall (Ky.) 65 S.W. 445, 66 S.W. 392, it was erroneous to enter the judgment against the nonresident with the report of the corresponding attorney containing the defect mentioned. Undoubtedly, the authority cited sustains this position, and if this was all that the record contains on this point, we would be compelled to reverse the case for this error; but, after the defective report of the corresponding attorney was filed, it having been made to appear that the nonresident defendant, Layton J. Ramsey, was an infant, the court appointed a guardian ad litem for him, who, before the judgment, reported that he had carefully examined the case, and was unable to make an affirmative defense. The following provisions of the Code bear upon the subject in hand: Section 59: "The clerk, at the time of making a warning order against a nonresident defendant, shall appoint a regular practicing attorney of the court, whose duty it shall be to make diligent effort to inform the defendant by mail concerning the pendency and nature of the action against him, and report to the court, during the first term which does not commence within sixty days after his appointment, the result of his efforts." Section 59, subsec. 5: "If such attorney cannot inform the defendant concerning the action, or if he learn that the defendant is under disability, other than coverture, or other than infancy and coverture combined, he shall so report to the court, and shall make an affirmative defense, if he can; or, if he cannot make such defense,...