Russell v. Ray's Trustees

Court of Appeals of Kentucky

Russell v. Ray's Trustees

217 S.W. 890, 186 Ky. 601, 1920 Ky. LEXIS 7

DecidedJanuary 23, 1920

StatusPublished

This text of 217 S.W. 890 (Russell v. Ray's Trustees) 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

Russell v. Ray's Trustees, 217 S.W. 890, 186 Ky. 601, 1920 Ky. LEXIS 7 (Ky. Ct. App. 1920).

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Opinion

Opinion of the Court by

Judge Clarke —

Affirming.

On August 21, 1919, Poster Ray executed and delivered Ms promissory, note for $3,000.00, and due one day thereafter, to appellant, S. A. Russell. Thereafter appellant filed this action, not against Poster Ray, hut against W. C. Rog’ers, who, it is alleged, is claiming to be and acting as trustee of the will of Mrs. Laura Ray McMillen, the mother of Poster Ray, and as such has possession of personal property of Poster Ray of the value of about $85,000.00. Judgment is asked against W. C. Rogers, as acting trustee of Poster Ray, that he “be compelled by judgment herein, out of the property of Poster Ray, Sr., to pay plaintiff’s demand of $3,000.00 with interest thereon from August 23,1919, and costs, or surrender to this court a sufficiency of said property to pay plaintiff’s demand, and that a sufficiency of said property be subjected to pay said demand, and for all proper equitable relief, general and special.”

Poster Ray is uot a party to the action and it is not even alleged that the note has not been paid, or that ordinary legal processes ag’ainst him have been exhausted or would not afford a complete remedy for whatever claim plaintiff has against Ray. Nor is the property iu the hands of the trustee attached or any lien asserted against same,

It is quite apparent therefore that the “petition in equity” is wholly lacking in every essential to entitle plaintiff to any relief whatever against the defendant Rogers or the property of Ray in his hands as trustee or otherwise.

Hence, it is clear the court did not err in sustaining a demurrer to the petition and in dismissing same upon plaintiff’s refusal to plead further. It is equally clear that we have no authority upon this record to construe [603]*603the will of Mrs. McMillen, which appellant asks us to construe, since he has manifested no rights thereunder, whatever its meaning.

Wherefore the judgment is affirmed.

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Opinion of the Court by

Judge Clarke —

Affirming.

On August 21, 1919, Poster Ray executed and delivered Ms promissory, note for $3,000.00, and due one day thereafter, to appellant, S. A. Russell. Thereafter appellant filed this action, not against Poster Ray, hut against W. C. Rog’ers, who, it is alleged, is claiming to be and acting as trustee of the will of Mrs. Laura Ray McMillen, the mother of Poster Ray, and as such has possession of personal property of Poster Ray of the value of about $85,000.00. Judgment is asked against W. C. Rogers, as acting trustee of Poster Ray, that he “be compelled by judgment herein, out of the property of Poster Ray, Sr., to pay plaintiff’s demand of $3,000.00 with interest thereon from August 23,1919, and costs, or surrender to this court a sufficiency of said property to pay plaintiff’s demand, and that a sufficiency of said property be subjected to pay said demand, and for all proper equitable relief, general and special.”

Poster Ray is uot a party to the action and it is not even alleged that the note has not been paid, or that ordinary legal processes ag’ainst him have been exhausted or would not afford a complete remedy for whatever claim plaintiff has against Ray. Nor is the property iu the hands of the trustee attached or any lien asserted against same,

It is quite apparent therefore that the “petition in equity” is wholly lacking in every essential to entitle plaintiff to any relief whatever against the defendant Rogers or the property of Ray in his hands as trustee or otherwise.

Hence, it is clear the court did not err in sustaining a demurrer to the petition and in dismissing same upon plaintiff’s refusal to plead further. It is equally clear that we have no authority upon this record to construe [603]*603the will of Mrs. McMillen, which appellant asks us to construe, since he has manifested no rights thereunder, whatever its meaning.

Wherefore the judgment is affirmed.

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Bluebook (online)

217 S.W. 890, 186 Ky. 601, 1920 Ky. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-rays-trustees-kyctapp-1920.