Wilson's Adm'r v. De Loach

• Decision Date: 28 September 1906
• Parties: WILSON'S ADM'R v. DE LOACH ET AL.
• Court: Kentucky Court of Appeals

96 S.W. 514

123 Ky. 393

WILSON'S ADM'R v. DE LOACH ET AL.

Court of Appeals of Kentucky.

September 28, 1906

Appeal from Circuit Court, McCracken County.

"To be officially reported."

Action by Ora Lee Wilson, as administratrix of the estate of Clifford J. Wilson, deceased, against R. De Loach and another. The cause was stricken from the docket, and subsequently F. G. Rudolph, administrator de bonis non of the estate of decedent, instituted proceedings to have the cause reinstated, and from a refusal to reinstate it he appeals. Affirmed.

Taylor & Lucas, for appellant.

Wheeler Hughes & Berry, J. M. Dickinson, and Trabue, Doolan & Cox for appellees.

BARKER J.

In 1903 Ora Lee Wilson, as administratrix of the estate of Clifford J. Wilson, deceased, instituted an action in the McCracken circuit court to recover damages from the Illinois Central Railroad Company and R. De Loach for his death by their negligence. On the 17th of October, 1904, on motion of plaintiff, this action was stricken from the docket by order of the court. In August, 1905, the plaintiff, having married was removed as administratrix, and appellant F. G. Rudolph was appointed administrator de bonis non of the estate, and thereupon instituted this procedure to have the case, which had theretofore been stricken from the docket, reinstated. This the court refused to grant for want of jurisdiction; and the merits of this ruling is the only question involved on this appeal.

In the case of Ashlock v. Commonwealth, 7 B. Mon. 45, this court, on the subject of striking an action from the docket without reservation or qualification, said: "An order striking a suit from the docket, made on motion of the plaintiff and without reservation or qualification, we should be inclined to regard as a voluntary dismissal or discontinuance, and as placing the case, after the term when the order was made, beyond the power of the court. But here the right to reinstate the case upon the docket being expressly reserved, the order, we think, should not be construed as a dismissal or discontinuance, but as a mere removal, or omission of the case upon the docket." In the case of Henry v. Commonwealth, 4 Bush, 428, the death of one of the defendants in an indictment was suggested, and it was ordered that the action abate as to the supposed decedent. Subsequently it developed that the defendant was not dead, and it was moved by the commonwealth's attorney...