Stix v. Calender

• Citation: 160 S.W. 514,155 Ky. 806
• Parties: STIX et al. v. CALENDER et al.
• Decision Date: 18 November 1913
• Court: Kentucky Court of Appeals

160 S.W. 514

155 Ky. 806

STIX et al. v. CALENDER et al.

Court of Appeals of Kentucky.

November 18, 1913

Appeal from Circuit Court, Owen County.

Action by Louis Stix and others against J. W. Calender and others. Judgment for defendants, and plaintiffs appeal. Reversed.

Botts &amp Perry, of Owenton, for appellants.

James H. Settle, of Owenton, for appellees.

NUNN J.

This is an action upon a return of nulla bona by the appellant as a creditor of J. W. Calender. Numerous parties are proceeded against as garnishees, and among them is Ida Calender, the wife, and G. W. Edmonson, the brother-in-law, of J. W Calender, and Theodore Edmonson, a brother of G. W. Edmonson. The purpose was to discover and attach in the hands of the garnishees the proceeds of two notes, one for $900 and the other for $1,900, payable to Ida Calender, and executed by the Edmonsons. It was alleged in the petition that the money representing these sums was fraudulently, and without any consideration by J. W. Calender, placed in the hands of and transferred to his wife, Ida Calender, and then by her loaned to the Edmonsons, and this was done to prevent appellants from realizing on their judgment which they then had against J. W. Calender, and that, as a matter of fact, J. W. Calender was the real and beneficial owner of the notes, and that appellants were entitled to subject the proceeds to the payment of their judgment, which amounted to $832, less a credit of $150. The proof shows that for a number of years prior to these transactions J. W. Calender was doing a large business at the town of Jonesville, in Owen county, and among his interest was a general store, farming, purchasing, and rehandling of tobacco, and stock dealing. From all appearances he was entitled to extensive credit, and he seems to have availed himself of it. On the night of November 13 1909, his storehouse was destroyed by fire, and soon thereafter attachment proceedings were run by creditors other than appellants, against his property, and of a $7,500 insurance policy which he carried on the store these creditors secured by garnishment proceedings between $6,000 and $7,000. The balance of the insurance money came into the hands of J. W. Calender on the 28th day of February, 1910, and that night Calender paid the money to his wife. On the next day he negotiated a loan to G. W. Edmonson and Theodore Edmonson over in Grant county for $900, and two days following he negotiated another loan to the same G. W. Edmonson for $1,900. The Edmonsons gave mortgages on their lands in Grant county to secure the payment of these debts, and made them payable to Ida Calender. The Edmonsons and J. W. Calender all testify that Calender in this matter was acting merely as the agent for his wife to whom the money belonged. The appellants were late in discovering that J. W. Calender was insolvent, or that any of his creditors had coerced him into payment of their debts, and it was not until February following that they even procured a judgment on their claim against him. Upon hearing the case the lower court adjudged that appellants were not entitled to any relief, and dismissed their petition.

It is admitted by J. W. Calender that all of the money which was loaned to the Edmonsons in the name of his wife, Ida Calender, was his property immediately prior thereto; $500 or more of it being proceeds of fire insurance on his store some $200 of it being proceeds of debts and store accounts due him which he had collected about the same time, and the balance of it was his, and was transferred to his wife in the...