103 S.W.2d 665 | Ky. Ct. App. | 1937
Affirming.
Jennie Morrow Britton brought this action in the Rockcastle circuit court against S.W. Davis individually, and S.W. Davis, executor of Julia Davis, deceased, to recover her share of the estate of Julia E. Davis. The facts relied on for recovery are: Julia E. Davis, aunt of plaintiff, died testate in Breckinridge county in the month of January, 1933. By her will which was duly probated in the Breckinridge county court, she devised to plaintiff the sum of $4,000 in cash, and all the jewelry belonging to the testatrix. The defendant, S.W. Davis, was appointed and qualified as executor of the will. At the time of her death, testatrix was seized of considerable money and other valuable personal property, including insurance policies of the value of $6,500. Said money and personal property materially exceeded the bequest to plaintiff hereinbefore mentioned. The defendant has been executor for more than two years, but has failed to pay her the bequest of $4,000, or to turn over to her the jewelry bequeathed. The petition concluded with a prayer for judgment against S.W. Davis individually, and as executor. Process was issued to the sheriff of Breckinridge county and served on S.W. Davis individually and as executor. On September 3, 1935, Davis appeared and moved that the plaintiff be required to elect whether she would prosecute the action against him individually or as executor of the will of Julia Davis. On September 10, 1935, Davis filed a special demurrer for improper joinder. On September 16, 1935, Davis entered a special appearance for the purpose of challenging *9 the jurisdiction of the court and quashing the return on the process. On September 25, 1935, plaintiff filed an amended petition, the allegations of which are not material to this controversy. The motion to elect was sustained, and the same motion was renewed after the filing of the amended petition. On January 14, 1936, Davis filed an affidavit, together with a statement of his attorneys, requesting an order for the personal attendance of certain witnesses, and the order was granted. At first the court overruled the special demurrer to the jurisdiction of the court. Thereupon a second motion to elect was sustained, and plaintiff elected to prosecute the action against S.W. Davis as executor. Thereupon S.W. Davis as executor appeared specially for the sole purpose of pleading to the jurisdiction of the court, and set forth the following facts: The letters of administration were issued to the defendant in Breckinridge county. Julia Davis lived in that county at the time of her death, and her will was duly probated in that county. The defendant lived in Breckinridge county at the time of the institution of this action and now lives in said county, and was served with summons in said county and not in Rockcastle county. He further moved the court to quash the return of the process, which was served on him in Rockcastle county. Davis as executor also filed a special demurrer to the petition. The special demurrer and plea to the jurisdiction of the court were both sustained on the ground that the court had no jurisdiction, and the petition was dismissed. Plaintiff appeals.
Relying upon the rule that an appearance for any purpose other than to object to the sufficiency of the service of summons constitutes a general appearance, Johnson v. Holt's Adm'r,
Judgment affirmed.