Gille v. Emmons

138 P. 608, 91 Kan. 462, 1914 Kan. LEXIS 56

• Court: Supreme Court of Kansas
• Decided: February 7, 1914
• Docket: No. 18,401
• Status: Published

Opinions

The opinion of the court was delivered by

Smith, J.:

The preliminary facts out of which this action arose are stated in Gille v. Enright, 73 Kan. 245, 84 Pac. 992. As will be seen by a reading of that case, some of the issues upon which this action is founded were attempted to be raised in that case but were held unnecessary to the decision and were not decided.

The real issue in this case is whether Mrs. Emmons repurchased from Hobbs, through D. R. Emmons as her agent, the lots which had previously been owned by her and sold in the foreclosure proceedings, and instead of taking the title in herself had caused the conveyance to be made to Myra B. Enright in pursuance of a contract to sell the lots to Mrs. Enright, or whether D. R. Emmons, for himself, bought the lots from Hobbs and caused the deed therefor to be made to Mrs. En-right under a contract made for himself to sell the lots to Mrs. Enright. There is no question but that the lots were in fact conveyed by Hobbs to Mrs. Enright and that Mrs. Enright paid to D. R. Emmons $7750 as the purchase price thereof.

Mrs. Emmons having died before this payment was made, and D. R. Emmons having been appointed administrator of her estate, the question is whether the money paid to him belonged to the estate of his wife or to himself personally. It is contended that this question is res judicata, but we have been unable to find from the abstracts of the record any judgment, which has not been reversed or superseded by an appeal, that determines the question.

D. R. Emmons, as administrator of the estate of Carrie L. Emmons, after the time for settling the estate had expired filed a report of his administration in the probate court of Wyandotte county by which he claimed that he had received nothing of value belonging to the estate but some clothing, which he had disposed of as directed without receiving anything therefor, and that he had paid out nothing for the estate, and asked to be discharged.

Thereupon the appellee, Gille, made a showing that he had duly exhibited and given notice in writing of the presentment of his claim against the estate for $6274.24, with interest and costs of suit, upon a judgment rendered in his favor against Carrie L. Emmons in her lifetime on May 3, 1900, the judgment having been rendered in the district court of Wyandotte county.

It seems that the proceedings before the probate court were taken by appeal to the district court and the district court reversed the order of the probate court and ordered the appellant to inventory the $7750 in his final accounting and settlement of the estate and to set up any claim he or any other person might have or claim to have thereto in order that the matter might be adjudicated and determined in a proper proceeding in a court of competent jurisdiction. This seems to be in accord with the procedure in Hartwig v. Flynn, 79 Kan. 595, 100 Pac. 642.

The order is affirmed.