Ellis v. Johnson

Court of Appeals of Kentucky

Ellis v. Johnson

11 Ky. Op. 868, 4 Ky. L. Rptr. 614, 1883 Ky. LEXIS 319

DecidedJanuary 6, 1883

StatusPublished

This text of 11 Ky. Op. 868 (Ellis v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ellis v. Johnson, 11 Ky. Op. 868, 4 Ky. L. Rptr. 614, 1883 Ky. LEXIS 319 (Ky. Ct. App. 1883).

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Opinion

Opinion by

Judge Pryor:

The remainder interest of the devisees, or whatever interest they had in the estate, ought not to have been subjected until the coercive process of the law had been exhausted as to the surviving partner and the executor. It is left to the officer executing the [869]*869writ to determine the extent of their liability and to proceed to execution, when this process should have been reserved by the chancellor. Nor do we see how the judgment could have been rendered against these beneficiaries, as the case was in equity until the summons had been executed on all of the parties for the time required by law. Some of them are infants, and they are not before the court on this appeal. The case was prematurely heard as to all but Thos. H. Ellis and his mother, but no motion having been made to set aside the judgment as to these appellants, and for the additional reason that they have not brought the infants before the court either as appellants or appellees, their appeal must be dismissed.

Muir & Wickliffe, for appellants. Wm. Johnson, for appellee.

As to the widow of Benjamin Ellis she has no interest in the controversy. Her dower or right to dower is not affected by the judgment rendered. The appellee was entitled to a judgment at law as against Thos. H. Ellis as surviving partner and as the executor of his father. ' The motion made by Mrs. Ellis to set aside the judgment can not affect the rights of the other appellants or aid them in their appeal. Her motion was made that she might answer, and to prevent the judgment from affecting other creditors. The appeal is dismissed without prejudice as to all the appellants but Thos. H. Ellis, and as to him the judgment is affirmed.

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Opinion by

Judge Pryor:

The remainder interest of the devisees, or whatever interest they had in the estate, ought not to have been subjected until the coercive process of the law had been exhausted as to the surviving partner and the executor. It is left to the officer executing the [869]*869writ to determine the extent of their liability and to proceed to execution, when this process should have been reserved by the chancellor. Nor do we see how the judgment could have been rendered against these beneficiaries, as the case was in equity until the summons had been executed on all of the parties for the time required by law. Some of them are infants, and they are not before the court on this appeal. The case was prematurely heard as to all but Thos. H. Ellis and his mother, but no motion having been made to set aside the judgment as to these appellants, and for the additional reason that they have not brought the infants before the court either as appellants or appellees, their appeal must be dismissed.

Muir & Wickliffe, for appellants. Wm. Johnson, for appellee.

As to the widow of Benjamin Ellis she has no interest in the controversy. Her dower or right to dower is not affected by the judgment rendered. The appellee was entitled to a judgment at law as against Thos. H. Ellis as surviving partner and as the executor of his father. ' The motion made by Mrs. Ellis to set aside the judgment can not affect the rights of the other appellants or aid them in their appeal. Her motion was made that she might answer, and to prevent the judgment from affecting other creditors. The appeal is dismissed without prejudice as to all the appellants but Thos. H. Ellis, and as to him the judgment is affirmed.

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Bluebook (online)

11 Ky. Op. 868, 4 Ky. L. Rptr. 614, 1883 Ky. LEXIS 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-johnson-kyctapp-1883.