Shropshire's Ex'rs v. Combs

• Decision Date: 13 March 1907
• Parties: SHROPSHIRE'S EX'RS ET AL. v. COMBS.
• Court: Kentucky Court of Appeals

100 S.W. 252

SHROPSHIRE'S EX'RS ET AL. v. COMBS.

Court of Appeals of Kentucky.

March 13, 1907

Appeal from Circuit Court, Madison County.

"Not to be officially reported."

Action by J. H. Shropshire's executors and others against R. B Combs. From a judgment in favor of defendant, plaintiffs appeal. Reversed, with directions.

Greene & Van Winkle and S.D. Parrish, for appellants.

CARROLL C.

In February, 1895, appellants, who were judgment creditors of appellee, R. B. Combs, instituted an action against him upon a return of "No property." They averred that the estate of Joseph Alexander, deceased, was indebted to Combs in the sum of $500, on a judgment recovered by Combs against the estate, and made the administrator of Alexander a party defendant, and sought to subject to the payment of the debt the amount due by the estate of Alexander to Combs. In April 1895, the administrator answered, admitting that the estate of Alexander was indebted to Combs in the sum of $500 evidenced by a judgment in his favor, and averred that a suit for the settlement of the estate of Alexander had been instituted, and that he did not know what per cent. of the judgment would be paid until the estate had been settled. In 1899, the appellee, Combs, filed his answer, in which he averred that in April, 1893, in order to induce his wife to execute a mortgage upon her land to one Mastin for the purpose of raising $1,000 for his benefit, he transferred and delivered to her the note he held against the estate of Alexander; it being agreed that, in consideration of her execution of the mortgage the note should be her property, and that it was delivered to her at the time of the execution of the mortgage, on April 10, 1893. In December, 1899, a reply was filed, controverting this answer. In 1904, appellant offered to file a pleading styled an amended reply and cross-petition, making the wife of Combs a party, and calling on her to answer under oath and set up whatever right she had to or interest in the Alexander judgment. The court refused to permit this pleading to be filed. Afterwards a judgment was rendered directing the administrator to pay to Mrs. Combs, wife of appellee, the amount due and payable on the Alexander judgment. From this judgment, this appeal is prosecuted.

The only evidence in the record, aside from the exhibits, is the deposition of appellee, which was taken in January, 1903. He testified, in...