201 Ky. 318 | Ky. Ct. App. | 1923
Opinion of the Court by
Overruling motion for a rule against the special judge of the Pike circuit court.
In 1916 Martha Cline, an aged widow residing in Pike county Kentucky, executed certain deeds to five of her children whereby she conveyed to each of them separate parcels of land lying near the city of Pikeville. She also executed a deed to A. D. Cline, one of her sons, but he declined to accept it. She afterwards filed this equity action in the Pike circuit court against those who accepted their deeds seeking a cancellation of them on the ground that at the time they were executed she was mentally incapacitated to do so and that she was unduly influenced to execute them. After extensive preparation the court dismissed her petition, from which judgment she prayed an appeal to this court. Before the appeal was perfected she
During the pendency of the appeal appellants, A. D. Cline and others, filed an independent action in the Pike circuit court to cancel the same writings relied on to defeat the reviver of the appeal in this court upon the same grounds as the deeds of 1916 were sought to be cancelled, and that cause was pending in the lower court when this court rendered its opinion. After the execution of those papers by Mrs. Cline, her children, who were the beneficiaries thereunder, sold portions of the land involved to various parties, who placed thereon valuable and costly improvements, all of which was done before this court delivered its opinion in the original appeal, reversing the judgment. Upon the filing of the mandate appellants, A. D. Cline and others, amended the original petition, in
The trial court, after the mandate was filed, entered an order cancelling the 1916 deeds, as directed by this court, but extended the order to five deeds instead of four, as directed in the opinion, which by oversight specified the number as four when in fact there were five. The court then entered an order consolidating the independent action with this one and continued it for preparation on the issues made, the chief one of which was the validity of the deeds, agreements and title bonds executed by Mrs. Cline after the rendition of the original judgment and while the appeal therefrom was pending. The court declined to refer the cause to the master commissioner to adjust the equities between the parties arising from the cancellation of the 1916 deeds, and this proceeding is a motion by appellants for a rule against Honorable R. B. Roberts, special judge of the Pike circuit court, to show cause why he did not enter a judgment in conformity to the opinion and mandate of this court.
That this court has the power to enforce its mandates by rule against the judge of the trial court seems to be well settled, as appears from the opinions in the case of Gorman v. Luckett, 6 B. Mon. 638; Watson v. Avery, 3 Bush 635; Smith v. Cochran, 7 Bush 548; May v. Ball, 24 Ky. L. R. 241, and Bradshaw v. Baker, 132 Ky. 66. But on an examination of the law relating to such practice, as contained in those and. other cases, it will be found that the procedure will be adopted only when a specific direc
Wherefore, the rule is denied and the motion is dismissed.