Wade v. Bryant

• Citation: 7 S.W. 397
• Parties: WADE et al. v. BRYANT et al.
• Decision Date: 25 February 1888
• Court: Court of Appeals of Kentucky

7 S.W. 397

WADE et al. v. BRYANT et al.

Court of Appeals of Kentucky.

February 25, 1888

Appeal from circuit court, Kenton county.

An action brought by J. B. Bryant et al., appellees, against W E. Wade et al., appellants, for partition. The circuit court overruled the exceptions of appellants to the report of the commissioners, and entered a nunc pro tunc judgment.

Tisdale & Gray, for appellants.

Collins & Finley, for appellees.

BENNETT J.

In an action which was brought by the appellees, in the Kenton circuit court, against the appellants, for the purpose of having the estate of the late Francis Lemaire setted and divided between the appellees and the appellants as devisees the court appointed three proper persons as commissioners to partition the real estate among said parties. The commissioners thus appointed made to the court a written report of partition. To this report the appellants filed exceptions, upon the ground that the partition was unfair and unequal. The exceptions were set for hearing on the 17th day of June, 1882; but it does not appear, either from the minutes, orders, or judgment of the court at that term, that the exceptions were passed upon at said term of court. But it does appear that on the 3d of July, 1882, the appellants filed their assignment of errors, in which they recite the judgment of partition, and complain of the court's overruling all their exceptions to the commissioners' report of partition, and of the court's confirming the same. It also appears that on the 3d of July, 1882, the appellants executed a supersedeas bond, in which it is recited that a judgment was rendered confirming the report of partition. It also appears that on the 27th day of September, 1882, this supersedeas bond was again referred to in one of the orders of court. The case was appealed to this court, and the appeal was dismissed in 1884. At the May term, 1884, of the circuit court, the court fixed the fifth day of said term for the hearing of the exceptions to the report of partition; but the exceptions were not heard on that day. On May 29, 1884, the mandate of this court was filed, dismissing the appeal. Thereupon the appellants filed additional exceptions to the report of partition, but, these exceptions having been lost or mislaid, they are not copied in the record; they therefore cannot be considered. On the same day the exceptions were heard in part, and continued for further hearing until the twelfth day of the term. On that day the appellees moved the court to enter judgment as of September 17, 1882, nunc pro tunc, overruling the exceptions theretofore filed to the report of partition, and confirming the same. The court on the 11th of September 1884, adjudged that it had rendered a judgment in writing on the 17th day of June, 1882, overruling the exceptions to the report of partition,...