Baker v. Owensboro Savings Bank & Trust Co.'s Receiver

140 Ky. 121 | Ky. Ct. App. | 1910

Opinion op the Court by

Wm. Bogers Clay, Commissioner

Beversing.

On the 20th day of the regular June term, 1908, of the Daviess circuit court, appellee, T. A. Pedley, as receiver of the Owensboro Savings Bank & Trust Company, recovered a judgment against appellant, lone W. Baker, for $156.20, with interest from April 10th, 1905, and the further sum of $349.20, with interest from October 10th, 1903, and costs. The demands on which this judgment was rendered were: First, the joint note of lone W. Baker and H. A. Williams, dated November 10th, 1904, due four months after date, executed by the said Williams and payable to the order of said Baker, negotiable and payable at the Owensboro Savings Bank & Trust Company, the note being indorsed by Baker to, and discounted by said bank; second, an inland bill of exchange, dated June 10th, 1903, drawn by H. A. Williamson H. W. Baker, and requesting the latter to pay to the order of lone W. Baker, four months after date, the sum of $349.20. Said bill was negotiable and payable at the Owensboro Savings Bank & Trust Company, and was indorsed by lone W. Baker, to, and discounted by said bank. The action was commenced May 22d, 1908. On that date a summons was (issued and served on IT. A. Williams and lone W. Baker. The next term of the Daviess circuit court began June 1st, 1908. To the action the appellant, lone W. Baker, made no defense, and judgment was rendered against her on June 23d, 1908. On July 9th, 1908, an execution issued on the aforesaid judgment. This execution was placed in the hands of the sheriff and levied on appellant’s property.

On September 24th, 1908, appellant instituted this action against appellee, H. A. Pedley, as receiver of the Owensboro Savings Bank & Trust Company, and Jesse B. Harl, sheriff of Daviess county, for the purpose of hawing the aforesaid judgment vacated on the ground of unavoidable casualty or misfortune which prevented her from appearing or defending, as provided by subsection 7 of section 518 of the Civil Code. After setting forth the judgment against her and the fact that she had a good and valid defense, as shown by an answer which she offered to file in the action in which the judgment was taken and which accompanied the petition, the petition contains the following averment: “Plaintiff states that at the time said action No. 15570 was instituted in this court on May 25, 1908, and continuously from said date until after the 25th day of August, 1908, she was disabled and incapacitated by sickness to attend to business and on said last named date went to Tar Springs, in Breckinridge count3r, in the hope of recovering from her sickness; she states that by reason of her indisposition above stated she was during its continuance rendered incapable to properly attend to any business and was especially unfit and incapable to attend this court and make her defense to said action; her said disability was casualty and misfortune unavoidable on her part.” To this petition a demurrer was sustained. Thereafter appellant amended her petition as follows: “She states that from and after the date of the service of summons on her in said action No. 15570 above mentioned on May 22d, 1908, until after July 25th, 1908, she was incapacitated by sickness to make any preparation for her defense of said action No. 15570 or to make her defense to said action. ’ ’ In this amended petition she sets forth the same defense embraced in the answer tendered and filed with her petition. Her defense is that, before the dates of the instruments sued upon, she was, and since that time has been, a married woman; that the note and bill sued on were the debts of H. A. Williams; that no part of either of said debts was created, existed, or was then a debt against her as principal debtor, but that she signed the same merely as surety; that no portion of her estate had ever been set apart by deed or mortgage or other conveyance for the purpose of securing either one of said two debts; that the Owensboro Savings Bank & Trust Company, when it discounted each of said bills and notes, had full knowledge that they were' the debts of said H. A. Williams and were not the debt either in whole or in part of the plaintiff; that these facts would have been pleaded by her in her behalf but for her sickness, which prevented her making a defense to said action. A demurrer was sustained to the petition as amended. Appellant declining to plead further, the petition and amended petition were dismissed, and she appeals.

Under the statute now in force in this state, a married woman, though she may bind her estate by a conveyance or pledge, can not become personally liable or bound as surety for any one. Hall v. Hall, 118 Ky. 656. Therefore, if appellant, at the time of the transaction in question, was a married woman and was in effect merely a surety, and this fact was known to the Owensboro Sayings Bank & Trust Company, appellant’s defense is good. The only question to be determined, then, is whether or not appellant’s allegations in regard to her incapacity because of sickness are sufficient.

While it is true the court’s processes must be respected, and that when a party is sued he must, when able, take steps to prepare for and make Ms defense, yet, where lie is incapacitated by sickness to make any preparation for bis defense, or to make bis defense to tbe action, and is as a matter of fact incapable of attending to any business, we conclude that, when these facts are made to appear, the trial court should not hesitate to vacate the judgment and grant a new trial on account of unavoidable casualty or misfortune which prevented him from appearing or defending. That being true, we conclude that the ¿negations of the petition and amended petition are sufficient, and that the court erred in sustaining the demurrer .thereto.

Por the reasons given, the judgment is reversed and cause remanded, with directions to overrule the demurrer to the petition as amended.