128 Ky. 697 | Ky. Ct. App. | 1908
Lead Opinion
Opinion of the Court.by
Affirming.
On December 5, 1898, tbe firm of Simonson, Whitetson & C'o., composed of D. Gr. Simonson, I. Whiteson, and Leo Stern, conducting a mercantile business in tbe city of Louisville in a house known as tbe “Mammoth,” made a deed of assignment to their bookkeeper, tbe appellant, L. Comingor, conveying him for
The assignee thereupon caused to be inserted in small type and in an obscure column of the Louisville Evening Times, between a notice relating to false hair and another to false teeth, an abbreviated advertisement of the time and place* of the sale to be made of the assigned merchandise and fixtures-. The Times foreman was directed by the assignee to insert the advertisement without display. It appeared in the Times on Friday and Saturday, January 27 and 28,1899, and the sale occurred on January 30th, which was Monday of the following week. As there was no issue of the Times on Sunday, the advertisement was published but two days, Friday and Saturday. The goods and fixtures sold were purchased by Henry Stern of New York at the price of $15,000, Henry
Upon the conclusion of the litigation in the federal courts, the Louisville Trust Company, trustee in bankruptcy, by supplemental answer, cross-petition, and
We are of opinion that the evidence appearing in the record clearly shows that there was a fraudulent agreement, entered into before the public sale of January 30, 1899, between Simonson, YTiiteson, and Leo Stem on the one part, and Henry Stern on the other,
Without adopting the estimate of any particular witness, we are satisfied that the great weight of the evidence is to the effect that the stock of goods sold by appellant to Henry Stern was at the time of the sale worth at cost prices not less than $50,000 and
We do not think appellant’s contention that he should have had a trial by jury of the questions of fact raised by the pleadings, is tenable. The Constitution secures to a litigant the right of trial by jury only in cases where such right existed at common law. O’Connor, etc., v. Henderson Bridge Co., 95 Ky. 643, 16 Ky. Law Rep. 244, 27 S. W. 251, 983; Ford v. Ellis, 56 S. W. 512, 21 Ky. Law Rep. 1838; Carder v. Weisenburgh, 95 Ky. 138, 23 S. W. 964, 15 Ky. Law Rep. 497; Reese’s Adm’r v. Youtsey, 113 Ky. 839, 69 S. W. 708, 24 Ky. Law Rep. 603. In view of expensive testimony having been taken by deposition in the case as prepared, it would have been an abuse of discretion on the part of the lower court to direct an issue out of chancery. Moreover, the action is not-one on appellant’s bond, but to settle his accounts as assignee. The issues o’f fact as to the questions of fraud and value were but incidental to the main purpose of the action, which was to compel an accounting and settlement of the assignee, and, the chancellor having exclusive jurisdiction thereof, such jurisdiction carried with it the power to decide all other issues raised, without the intervention of a jury.
Appellant’s contention that appellee Louisville Trust Company, trustee in bankruptcy, has no right to assert in this action the -claim in controversy, is without merit. Its right to do so was recognized by
Appellant has no just ground of complaint to the action of the circuit court in overruling bis exceptions to the depositions of appellee. Under section 1008, Ky. St., and rule 12 adopted by the Jefferson circuit court, the depositions were properly taken upon interrogatories. As Simonson’s depositions seems to have been taken after the filing of the answer, and hot within 20 days from the service of summons, and he is not united in interest with appellee, and the deposition was not taken in his own behalf, under the rule in question it was properly admitted in evidence.
Appellant further complains that there does not
For the reasons indicated the judgment is affirmed on the original, and reversed on the cross, appeal, and cause remanded, with directions to the lower court to enter judgment in appellee’s behalf against appellant for $24,398.90, with interest from July 5, 1900; and for further proceedings consistent with this opinion.
Rehearing
Appellee’s petition for modification and extension of opinion herein insists that this court on the cross-appeal should, in reversing the judgment of the circuit court, have directed the entering in that court of a judgment in its behalf against appellant for $48,000, instead of the amount named in the opinion. We have concluded to adhere to the conclusion expressed in the opinion. Appellee’s contention on this point is based on the amount realized for the stock of Simonson, Whiteson & Co., after its purchase by Henry Stern under the fraudulent arrangement with them. This is not a fair criterion, as the sum thus realized for the goods was obtained by disposing of them in the usual course of trade, and by making such additions to the stock as would enable them to be sold to the best advantage. A fairer basis of valuation was that adopted by the opinion which fixed the value as of the date of sale at what the stock and fixtures, in view of their condition at that time, should reasonably be expected to bring at a forced sale, such as was ordered. The valuation thus made should stand, as we have not been convinced by anything said in the petition that it was not approximately correct.
It is further insisted by appellee that the affirmance of the judgment on the original appeal entitled it under section 764, Civ. Code Prac., to 10 per cent, damages on the amount thereof. In this we concur. The section, supra, seems to give damages upon an affirmance, as a matter of right in money judgments to the extent that they have been superseded for the purpose of appeal. On this appeal, prosecuted by appellant, Comingor, the judgment of the circuit court which he superseded was affirmed. The effect of
The case of O’Connor v. Henderson Bridge Company, 95 Ky. 633, 16 Ky. Law Rep. 244, 27 S. W. 251, 983, and Henderson Bridge-Company v. O’Connor & McCulloch, Id., is in point. O’Connor and McCulloch were original appellants and the Henderson Bridge Company cross-appellant. In response to the petition for rehearing, filed by the Henderson Bridge Company, the court said: “Section 757, Civ. Code Prac., as amended March 24, 1888, provided: ‘When a party recovers .judgment for only part of the demand or property he sued for, the enforcement of such judgment shall not prevent him from prosecuting an appeal therefrom as to so much of the demand or property sued for that he did not recover.’ ” So that the contractors were entitled to an execution upon the judgment of the lower court for $61,536.55 at the same time prosecuting an appeal therefrom as to so much of the demand sued for that they did not recover, but the company prevented them obtaining an execution and thereby collecting the amount of the judgment by a separate appeal and execution of the supersedeas bond, whereby it covenanted to pay to the contractors, appellees, all costs and damages adjudged against appellants on that appeal, and also
The petition of appellee as to the claim for 10 per cent, damages is sustained, and the damages allowed. In other respects it is overruled.