Dagley v. Boyd

120 S.W.2d 749, 275 Ky. 44, 1938 Ky. LEXIS 364

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: October 18, 1938
• Status: Published

Opinion

Opinion op the Court by

Judge Rees

Reversing.

This is a companion case to Philpot’s Ex’x v. Earl Boyd, 120 S. W. (2d) 747, this day decided.

After the judgment was rendered in the Boyd Case and before this suit was brought, Norma Philpot, widow of E. Philpot, married R. C. Dagley. The judgment in the action to surcharge the settlement of E. Philpot as guardian of Earl Boyd was rendered January 28, 1937. On May 12, 1937, this action was brought on that judgment against Norma Philpot Dagley, as devisee and executrix of E. Philpot. Her husband, R. C. Dagley, was made defendant. The plaintiff sought to have subjected to the payment of the judgment in the prior action certain real estate which he alleged was owned by E. Philpot at the time of his death, and which passed to his widow under his will. Numerous pleadings were filed, and considerable proof was heard on the issues. One of the questions in issue was the ownership of the land in question at the time of E. Philpot’s death, and whether or not his conveyance of the land to his wife in 1922 was fraudulent. The court adjudged that the plaintiff had a superior lien on the land, and ordered it sold to satisfy the judgment theretofore obtained against Norma Philpot as the devisee and executrix of her husband. The defendants have appealed.

It is unnecessary to consider the many questions discussed in briefs of counsel, since the judgment must fall with the judgment in the former case on which it was dependent. That judgment having been set aside, the cause of action which plaintiffs attempted to assert in the present litigation fails.

The judgment, therefore, is reversed, with directions to dismiss plaintiffs’ petition.