Turley's Adm'r v. Barnes

• Decision Date: 04 February 1898
• Citation: 103 Ky. 127,44 S.W. 446
• Parties: TURLEY'S ADM'R v. BARNES et al. TURLEY, Adm'r, v. SAME.
• Court: Kentucky Court of Appeals

44 S.W. 446

103 Ky. 127

TURLEY'S ADM'R v. BARNES et al.

TURLEY, Adm'r, v. SAME.

Court of Appeals of Kentucky.

February 4, 1898

Appeals from circuit court, Montgomery county.

"To be officially reported."

Actions by Samuel J. Turley, administrator, against James T. Barnes and others, to surcharge certain settlements made by plaintiff with the county court. Judgment dismissing petitions, and plaintiff appeals. Reversed.

H. B Kinsolving and W. W. Holt, for appellant.

Tyler &amp Apperson, for appellees.

BURNAM J.

The parties to the records in these two cases being the same, the petitions being the same except as to the amount in controversy, and the two cases having been heard together and each having been dismissed on special demurrer to the jurisdiction of the court, and the legal question involved being the same in both cases, we will consider them together. The petition alleges that while appellant was acting as administrator of Mahala Turley, and as administrator with the will annexed of James Turley, deceased, he made a settlement of his accounts as administrator of each with the county judge of Montgomery county, in 1894, in which settlements the county judge, "without his consent and oven his protest," charged him in the case of Mahala Turley with the sum of $588.35, and in the case of James Turley with the sum of $2,094.28, which were deposited to his credit as administrator in the New Farmers' Bank of Mt. Sterling at the date of the assignment of the bank, on the 26th day of July, 1893. The petition further alleges that the bank is insolvent, and that it had paid 40 per cent. to its depositors, and would probably pay not more than 55 per cent. in all, making a loss of 45 per cent. of such deposit in each case; that at the time he made these deposits in the bank for safe-keeping it was in good repute, and regarded as a safe institution; that he believed it to be perfectly solvent, and acted in good faith, and for what he regarded as the best interest of the heirs, at the time the deposits were made. And this suit was brought to falsify and surcharge the county-court settlement, and asks that it be corrected by allowing him credit for actual loss upon the deposits so made by him, and for a restraining order enjoining the heirs at law from prosecuting suits to recover the balance due them on these items of alleged indebtedness, as shown by the county-court settlement, until the case could be heard. The defendants demurred to the petition on the special ground that the court had no jurisdiction of the subject-matter of the action, and the court sustained the demurrer, and entered a judgment dissolving the injunction and dismissing the petition; and we are asked, upon this appeal, to reverse that judgment.

It is urged by appellees that the settlement made in the county court by appellant is prima facie correct and enforceable and that as it appears from the allegations of the petition that he made the settlements complained of in person, and was charged, "without his consent and over his protest," with the whole amount of these deposits, appellant had litigated these items before the county court, and his remedy for alleged errors in the settlement complained of is by appeal to the circuit court, under the provisions of section 978 of the Kentucky Statutes, which provides: "Appeals may be taken to the circuit court from all judgments and orders of the county court in the settlement of accounts of personal representatives, assignees, guardians, trustees, curators and other...