Nixon v. Ossenbeck

112 S.W. 645, 129 Ky. 588, 1908 Ky. LEXIS 191

• Court: Court of Appeals of Kentucky
• Decided: October 6, 1908
• Status: Published

Opinion

Opinion of the Court by

Judge Barker —

Dismissing appeal.

The appellant, James Nixon, recovered a personal ■judgment against the appellee August Ossenbeck, in the Kenton circuit court, upon which an execution issued which was levied upon a house and lot in Kenton county as the property of Ossenbeck. The property was sold under this execution and purchased by the plaintiff, Nixon, at execution sale for $100. The execution was returned “No property found” as to the balance of the judgment, and thereafter this action was instituted in equity to enforce the payment of the remainder. Attachment issued and was levied upon the same land sold under the execution. There was a mortgage claim upon the land, and the defendant Ossenbeck had a right of homestead therein. Such proceedings were had thereafter that a judgment was rendered .by the chancellor sustaining the attachment for the sum of $363.50, with interest at the rate of 6 per cent, per annum from June 1, 1887, until paid, and $136.45 costs, subject to a credit of $100 as of April 28, 1890, enforcing the lien upon the land for the amount stated, and ordering a sale by the master commissioner. Afterwards a sale of the property was made by the commissioner under the foregoing decree, and appellee A. V. C. Grant purchased it for the sum of $1,875. The sale was reported by the commissioner to the court, and thereafter the purchaser filed exceptions to it on the ground that the defendant Ossenbeck’s wife had not been made a party to the action and had an inchoate right of dower in the property, and that he, therefore, could not obtain a good title thereto. This exception was sustained by the court, the sale set aside, and the purchaser released from his purchase bonds. Prom this order this appeal is prosecuted.

After the record was lodged in this court, theappellees filed the affidavit of the appellant, James Nixon, in which he sets forth that the appeal from the order setting aside the sale was prosecuted in his name without any right or authority so to do, and that he does not wish to prosecute it further, but directs that it be dismissed. He further says that the purchaser, Grant, bid in the property at his (Nixon’s) request, and in order that his (Nixon’s) interest-might be protected, and that he does not desire his friend to be entangled in any litigation on his account. The attorney for appellant insists that he has a right to prosecute this appeal in the name of James Nixon because he has a lien upon the judgment for the fees due him. It seems to us clear that the attorney cannot prosecute this appeal in the name of his client-at the client’s expense and against his consent. It is not necessary to decide now what remedy the attorney may have as to his fee; but Nixon is the only person who appears upon the record as appellant, and he has a right to decide whether or not the appeal shall be prosecuted in his name and at his expense.

For these reasons, the motion to dismiss the appeal must be sustained; and it is so ordered.