131 Ky. 251 | Ky. Ct. App. | 1909
Affirming-
On October 16, 1906, George H. Alexander, a revenue agent of the State at large, filed a statement in the Jefferson county court under section 2441, Ky. Stats., 1903, against the Columbia Trust Company, trustee for Julia Churchill, to have assessed as omitted property for the years 1902,1903, 1904,1905, and 1906 the personal property held by the trust company as trustee for her. The trust company filed an answer, pleading that Julia Churchill was a non-resident of the State and resided in New York. Upon a hearing in the county court, the proceeding was dismissed. The Commonwealth appealed to the circuit, court. In the circuit court, after the case had been submitted, the court allowed the defendant to file an amended answer pleading a former judgment in bar of the proceeding. On final hearing in the circuit court, the proceeding was again dismissed, and the Commonwealth has appealed to this court. ¡
The amended answer set up a matter of record. The circuit court did not abuse a sound discretion in setting aside the submission and allowing the amended answer to be filed. The policy of the Code is to allow amendments of the pleadings, so that justice may be better administered. L. & N. R. R. Co. v. Hall, 115 Ky. 567, 74 S. W. 280, 24 Ky. Law Rep. 2481. The plea in bar set up the fact that a similar proceeding had been instituted against the trust company by A. J. Bizot for the same years; the only difference between- the two proceedings being that in the case instituted by Bizot it was stated that the trust company had in its hands a large number of estates
In Newman on Pleading, section 185 (last Ed.), the rule is thus stated: “We have already noticed the fact that by special provision of the Code a trustee of an express trust — a person with whom or in whose name a contract is made for the benefit of another— may bring an action without joining with him the person for whose benefit it is prosecuted. We have also seen that the trustee and the cestui que trust may join as co-plaintiffs at their election; but the converse of these propositions is not the rule of the law where the trustee and the cestui que trust are sued as defendants. Both the trustee and the cestui que trust are in general necessary parties to any action brought
While the county court acts ministerially in assessing property, it acts judicially in determining whether it is subject to assessment, and so an appeal lies from so much of its judgment as determines whether the property is subject to assessment. When the county court in the former proceeding held that certain property had been omitted from assessment it necessarily held that this was all that was omitted of the prop-„ erty sought to be assessed in the statement. The determination of the county court that the other property referred to in the statement was not subject to assessment is conclusive upon the Commonwealth. Commonwealth v. Bacon, 102 S. W. 839, 31 Ky. Law Rep. 472, 126 Ky. 30. The conclusive effect of that judgment can not be affected by parol evidence in this action as to what was in fact assessed in that action; nor is it material whether it was an agreed judgment or otherwise. Unless the judgment is opened in the manner provided by law, it can not be attacked collaterally, and no judgment can be had here for relief
Judgment affirmed.