155 Ky. 462 | Ky. Ct. App. | 1913
Opinion op the Court by
Affirming.
B. P. Van Meter recovered a judgment for $1,000.00 against J. W. Darby. Execution was issued on the judgment and returned no property found, and thereupon .this action was brought to enforce satisfaction of the
The judgment in favor of Van Meter against J. W. Darby was entered ón June 21, 1911, the execution on the judgment was returned no property found on June 17,1912. J. W. Darby had an account in the Second National Bank which was opened on September 15, 1911, and ran until March 2,1912, when the account was closed. The account in the name of Mrs. Darby was opened on March 14, 1912, by a deposit of $100 and ran until June 18, when the attachment was served. Mrs. Darby and her husband testify that she furnished her husband the money with which the account was opened; that he made bets for her on horse races, and that in this way the money deposited in bank was made, one of the deposits being for $1,150, another for $700, another for $600 and several for $200. Mrs. Darby was at no time at the bank. She' did not know what was deposited or what was checked out. The husband checked out the money as he pleased and used it as he pleased. He used some of the money for his own purposes and some he used on his wife’s account in business that she was carrying on. He wás also carrying on business on his own account and some of the money was used in his own business. The chancellor seems to have come to the conclusion. that $250 of the balance in bank represented money which Mrs. Darby had turned over to her husband to deposit for her over and above what he had paid out for her,
It is claimed on the cross appeal that the circuit court should have sustained the plaintiff’s exceptions to the evidence of Mr. and Mrs. Darby. But the plaintiff took these depositions and there is nothing in the record to show that they were taken for the purposes of cross-examination. In addition to this all the material facts were brought out on the plaintiff’s own examination of the witnesses. The cross-examination merely brought out the facts more fully. The plaintiff cannot complain of the evidence which he himself brought out. It is, therefore, unnecessary for us to pass upon the competency of the witnesses.
Mrs. Darby complains that the court erred in adjudging the cost of the action against her. Section 889, Kentucky Statutes, provides:
“In actions in equity the party succeeding on the merits or otherwise shall recover his cost except against nominal defendants.”
The purpose of the action was to subject the fund in the bank to the plaintiff’s debt. Mrs. Darby defended the action claiming the entire fund. The plaintiff succeeded in subjecting to his debt a part of the fund. It is simply a case of a plaintiff recovering a smaller amount than he claimed. Having succeeded in making a recovery, the plaintiff is entitled to his cost under the statute. (Brandies v. Stewart, 1 Met., 395.)
Judgment affirmed on original and cross appeals.