Worsham v. Lancaster

• Decision Date: 15 October 1898
• Citation: Worsham v. Lancaster, 47 S.W. 448 (Ky. Ct. App. 1898)
• Parties: WORSHAM v. LANCASTER et al. [1]
• Court: Kentucky Court of Appeals

47 S.W. 448

WORSHAM v. LANCASTER et al. ^[1]

Court of Appeals of Kentucky.

October 15, 1898

Appeal from circuit court, Fayette county.

"Not to be officially reported."

Action by Mary Lancaster and others against E. L. Worsham to recover land. Judgment for plaintiffs, and defendant appeals. Affirmed.

Beauchamp & Allen, O. S. Tenny, and Morton & Darnell, for appellant.

Z Gibbons and J. Henning Nelms, for appellees.

WHITE J.

The appellees brought this action in the Fayette circuit court seeking to recover a certain lot in the city of Lexington. Appellant denied their right to recover, and on this question the law and facts were submitted to the court without a jury and in December, 1891, the court rendered judgment, on the issue of a right to recover the land, that appellees were entitled to the land, and the court-reserved all questions of equity, and transferred the case to the equity docket to adjudicate liens, improvements, rents, etc. The case was prepared in equity, and proof was taken on the issues there made, and in August, 1894, the chancellor rendered judgment adjudging that appellees were entitled to three-fifths of the land, and to rents at $45 per year from September 13, 1875, and to draw interest at 6 per cent. from the end of each year; that appellant was entitled to $1,400, being three-fifths of the value of improvements made by him, and also to a lien for $600, being three-fifths of $1,000 execution debt due Eagle, with interest from September 13, 1875, at 10 per cent., the latter two sums being a lien on the three-fifths interest of appellees, but declined to set off the lien debts adjudged to appellant against the rents adjudged to appellees, and adjudged a sale of the whole property, and provided for a distribution of the proceeds. At the March term, 1895, after the property had been sold under the decree of sale, appellant moved the court to correct the order of distribution, which motion the court overruled. Appellant afterwards, by pleading, sought to have the debts due appellant under the judgment of August, 1894, offset against the amount due appellees under the judgment, and this motion was in August, 1895, dismissed and overruled, and from that order an appeal was prayed and granted in the lower court. In December, 1895, the appellant produced this record to the clerk of this court, with this statement, after naming parties: "The judgments appealed from were rendered on the 9th of August, 1894, and on the 5th day of August, 1895, and can be found on pages 187 and 204 of the record. Do not wish any process in the case,"--and this was signed by counsel for appellant. The clerk thereupon indorsed on the transcript: "1895, Dec. 11. Filed; tax paid; appeal granted below. Att. A. Addams, C. C. A." There was no summons issued on the appeal, and by the statement none was desired. As to the judgment rendered August 5, 1895, and from which an appeal was granted below, appellees were before the court, and no summons was necessary. In April, 1897, appellant, after notice, moved this court to have the clerk of this court correct his memorandum of December 11, 1895, so as to show an appeal was granted by him as to the judgment of August, 1894. This order was made, and the memorandum was corrected and summons issued. In January, 1898, appellees, after notice, asked the court to set aside the order of April, 1897, and to dismiss the appeal as to the judgment of August, 1894, and this motion is before us and should be determined before we enter into the consideration of the judgment of August, 1894,--for, if it be sustained, then the judgment is not before us; otherwise it will have to be considered. When in April, 1897, the appellant moved the court to order the clerk to correct his memorandum so as to show that an appeal had been granted by him when the transcript was filed, the appellees had due notice of the motion, and entered an objection thereto, and the motion, with the objection, was submitted to the court, with the result that the motion was sustained and the order entered.

Whatever our opinion may be on this question, as an original proposition, it is clear that in this case it cannot be disturbed. It is res adjudicata. By the order entered, it was necessarily determined that there...