White's Admr. v. Cole

Court of Appeals of Kentucky

White's Admr. v. Cole

3 Ky. Op. 318, 1869 Ky. LEXIS 406

DecidedDecember 9, 1869

StatusPublished

This text of 3 Ky. Op. 318 (White's Admr. v. Cole) 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

White's Admr. v. Cole, 3 Ky. Op. 318, 1869 Ky. LEXIS 406 (Ky. Ct. App. 1869).

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Opinion

Opinion of the Court by

Judge Peters:

The transcript of the record before us does not show that the answer was filed, nor does it show that on the trial of the case it was treated as a part of the pleadings in the case; but in the judgment it is stated that the defendants, J. P. White and John G. Cole, having been duly summoned failed to answer, etc,, from which it is obvious that the answer was not considered by the court as any part of the pleadings. Whether, therefore, the court below properly credited the judgment by the $148.56 endorsed on the writing sued on must depend on the allegation of the petition controverting the right of the defendants to said credit — which allegation is as follows: The plaintiff states that the other credit put on said note by the defendant, J. G. Cole, of one hundred and forty-eight dollars and fifty-six cents as interest on notes and accounts up to that day, which Elizabeth IT. Cole holds against Jacob White, deceased, is not correct and was placed thereon without the authority of the plaintiff, unless the court to settle ¦’up the estate of Jacob S. White, deceased, allowed said claim, and the [319]*319plaintiff charges that said claim was invalid against Jacob S. White’s estate, and has not been, and will not be allowed by the court, and said credit it disallowed, and repudiated.

Turner, for appellant. Burnam, for appellees.

It is not stated in the petition when, or within what time application was to be made to the commissioner to ascertain whether he would allow the credit. Nor is it alleged' that the claim for the credit had been presented to him and that he had refused to allow it; but it is merely stated as the conclusion of the pleader, that it has not been allowed and will not be allowed, without stating any facts conducing to show that the credit should not be' allowed, or any reason why the commissioner should not allow it.

To authorize the rejection of the credit by the court, it should have been distinctly alleged that the claim therefor had been presented, and the commissioner had refused to allow it — or facts should have been stated, which would furnish a valid and sufficient reason why the commissioner would reject it; facts which, if true, the court could see, would constitute a valid, legal reason for rejecting the credit. Such an allegation the petition does not contain, and the court below consequently did not err in ordering the credit to be entered on the judgment.

Wherefore, said judgment is affirmed.

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Opinion of the Court by

Judge Peters:

The transcript of the record before us does not show that the answer was filed, nor does it show that on the trial of the case it was treated as a part of the pleadings in the case; but in the judgment it is stated that the defendants, J. P. White and John G. Cole, having been duly summoned failed to answer, etc,, from which it is obvious that the answer was not considered by the court as any part of the pleadings. Whether, therefore, the court below properly credited the judgment by the $148.56 endorsed on the writing sued on must depend on the allegation of the petition controverting the right of the defendants to said credit — which allegation is as follows: The plaintiff states that the other credit put on said note by the defendant, J. G. Cole, of one hundred and forty-eight dollars and fifty-six cents as interest on notes and accounts up to that day, which Elizabeth IT. Cole holds against Jacob White, deceased, is not correct and was placed thereon without the authority of the plaintiff, unless the court to settle ¦’up the estate of Jacob S. White, deceased, allowed said claim, and the [319]*319plaintiff charges that said claim was invalid against Jacob S. White’s estate, and has not been, and will not be allowed by the court, and said credit it disallowed, and repudiated.

Turner, for appellant. Burnam, for appellees.

It is not stated in the petition when, or within what time application was to be made to the commissioner to ascertain whether he would allow the credit. Nor is it alleged' that the claim for the credit had been presented to him and that he had refused to allow it; but it is merely stated as the conclusion of the pleader, that it has not been allowed and will not be allowed, without stating any facts conducing to show that the credit should not be' allowed, or any reason why the commissioner should not allow it.

To authorize the rejection of the credit by the court, it should have been distinctly alleged that the claim therefor had been presented, and the commissioner had refused to allow it — or facts should have been stated, which would furnish a valid and sufficient reason why the commissioner would reject it; facts which, if true, the court could see, would constitute a valid, legal reason for rejecting the credit. Such an allegation the petition does not contain, and the court below consequently did not err in ordering the credit to be entered on the judgment.

Wherefore, said judgment is affirmed.

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Bluebook (online)

3 Ky. Op. 318, 1869 Ky. LEXIS 406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whites-admr-v-cole-kyctapp-1869.