Estes v. Jackson

• Decision Date: 27 October 1899
• Parties: ESTES v. JACKSON et al. [1]
• Court: Kentucky Court of Appeals

53 S.W. 271

ESTES v. JACKSON et al. ^[1]

Court of Appeals of Kentucky.

October 27, 1899

Appeal from circuit court, Marion county.

"Not to be officially reported."

Action by Joe H. Estes against T. C. Jackson and others to recover a debt due plaintiff by the mother of defendants, who have received from their mother's estate property of greater value than the amount of the debt. Judgment for defendants and plaintiff appeals. Affirmed.

H. W Rives, for appellant.

Thompson & Spalding, for appellees.

DU RELLE, J.

Appellant brought suit against appellees, alleging that their mother during 1886 and 1887, bought on account from appellant a considerable amount of meats at various dates, making some payments from time to time, and leaving a balance unpaid on November 30, 1887, amounting to $115.12, when she executed a promissory note for that amount; that the note had been lost had never been paid, etc.; and that the appellees had received from their mother's estate property of greater value than the amount of the debt. Judgment was accordingly prayed. No motion was made to paragraph, nor was the statute of limitations pleaded, but the answer states lack of knowledge or information of both the indebtedness and the execution of the note, and denies such indebtedness and execution. Upon the issues thus made the evidence was that the books which were introduced upon the hearing, and which showed the items of the account relied on as showing the indebtedness of appellees' mother, were kept by a former partner of appellant, since dead, but were not books of original entry; the book in question being a ledger, and the original entries being made in a blotter or day book, which was not produced. The books produced, not being books of original entry, were properly excluded as evidence by the trial court.

The final entry closing the account as settled by note was made by appellant himself, and he undertakes to testify to having made it, and to its correctness. This is claimed to be admissible under subsection 7, § 606, Civ. Code Prac providing that a "person may testify for himself as to the correctness of original entries made by him against persons who are under no disability--other than coverture, or infancy and coverture combined--in an account book, according to the usual course of business, though the person against whom they were made may have died or have become of unsound mind." Entries in...