Smith v. First Nat. Bank of Williamson

• Decision Date: 30 September 1941
• Citation: 287 Ky. 609,154 S.W.2d 705
• Parties: SMITH et al. v. FIRST NAT. BANK OF WILLIAMSON.
• Court: Kentucky Court of Appeals

154 S.W.2d 705

287 Ky. 609

SMITH et al. v. FIRST NAT. BANK OF WILLIAMSON.

Court of Appeals of Kentucky

September 30, 1941

Appeal from Circuit Court, Pike County; J. Monroe Fields, Judge.

Suit by the First National Bank of Williamson against widow and heirs of Ken Smith, deceased, and administrator of estate of deceased, wherein Layton Smith and J. M. Morris asserted their liens on the realty owned by deceased. From an order charging Layton Smith and J. M. Morris with part of a fee allowed attorneys for plaintiff, Layton Smith and J. M Morris appeal.

Reversed.

Stratton & Stephenson, of Pikeville, for appellant.

Henry J. Scott, of Pikeville, for appellee.

STANLEY Commissioner.

We sustain motions of Layton Smith and J. M. Morris for appeals from an order charging them with part of a fee allowed attorneys for the appellee. The amounts involved are $228.43 and $224.06, respectively.

The appellants filed a schedule calling for certain portions of the record according to the terms of Section 737 of the Civil Code. Where that is the case and there is no further direction by the appellees to prepare additional parts of the record, it is deemed the parties have consented to the appeal being tried upon the record as thus prepared. It is different when the record purports to be complete, for then it is conclusively presumed that the missing portions support the judgment. Rule III, Par. 14; Clevinger v. Nunnery, 140 Ky. 592, 131 S.W. 519; White's Adm'x v White, 148 Ky. 492, 146 S.W. 1101; Ward v Vanhoose, 222 Ky. 135, 300 S.W. 337.

The petition of the appellee, First National Bank of Williamson is against the widow and heirs of Ken Smith and the administrator of his estate. It sets forth five different notes executed to it by Smith, four of which were secured by mortgages on land and the other unsecured. It is alleged that so far as plaintiff knows the only other creditors of the decedent are the defendants, Layton Smith, one of his sons, and Gladys Smith, the wife of another son, whose debts are secured by mortgages on certain land. They are called upon to assert their liens. It is further charged that the decedent had fraudulently conveyed certain property to two of his sons. The prayer of the petition is for judgment on the respective notes, the adjudication of liens on specific parcels of land and for a sale of so much as may be necessary to satisfy plaintiff's claims. Also, that the alleged fraudulent conveyances be declared void and that the plaintiff have judgment for its debt, costs and all proper relief. There was no prayer for a settlement of the estate or anything incident thereto. The clerk of the court entered an order in vacation which reciting that "It appearing that the above styled action is for the purpose of settling the estate of Ken Smith, deceased," the case was referred to the Master Commissioner to advertise for claims, receive the same and proof thereof, and to determine the decedent's assets and liabilities. Section 431, Civil Code. Some months later an amended petition was filed alleging that certain land on which plaintiff held a mortgage had been fraudulently conveyed to Layton Smith and praying that it be set aside. There is nothing in the judgment concerning these allegations of fraudulent conveyances.

In November, 1938, the Master Commissioner filed a report in which he set forth the amount of the several notes owing the plaintiff and some other obligations of the decedent including a note for $1,100 due J. M. Morris, and of $1,072 to Layton Smith. All personal property had been set aside to the widow and children. Judgment was entered for the several debts and a sale of the real estate directed to be made, after allowing the widow dower in certain land which was unencumbered. A separate order entered on the same day sustained a motion of the plaintiff for the allowance of an attorneys' fee of $500, "same to be taxed as part of the cost in this action." In...