157 Ky. 767 | Ky. Ct. App. | 1914
Opinion op the Court by
Reversing.
This action arises from the attempt of appellee to enforce the collection of a $588.62 note which T. J. Kendrick and his son, John D. Kendrick, the appellant, executed to him on October 8th, 1909.
To understand the controversy it will he well to recite some of the transactions leading up to the note. It seems that the appellee, Williams, formerly owned
On February 21st, 1911, the note remaining unpaid, with the exception of a credit of $170.00 paid about the time the suit was filed, Williams recovered a judgment against T. J. Kendrick and the appellant, John D. Kendrick. They were proceeded against as non-residents and an attachment levied upon the land of appellant in Pike County, the same land from which the timber had been sold. In due course, and upon constructive service, judgment was rendered and the land sold to satisfy it; appellee Williams becoming the purchaser.
“A defendant against whom a judgment may he rendered upon constructive service of a summons, and who did not appear, may, at any time within five years after rendition of the judgment move to have the action retried; and, security for the cost being given, shall be admitted to make defense; and thereupon the action shall be retried as if there had been no judgment.”
Williams objected to the filing of an answer and the re-openin'g of the case, but the court allowed it after taking the question for some days under advisement. The answer alleged that he was merely a surety and his father was the principal in the note, and that he was under 21 years of age at the time he signed it; that he received no benefit, nor any of the proceeds therefrom, and that same was not executed for necessaries. Williams first traversed this answer of record but later filed a written reply in which he alleged that he believed at the time the note was executed that appellant was over 21 yars of age, and that appellant fraudulently represented that he was over 21 years, and relying upon said representation he accepted the note, and abandoned his intention of suing T. J. Kendrick, the father, upon the original debt which the note was executed to secure. The reply also alleged that the appellant ratified the note after arriving at maturity by paying on it the $170.00 credit. Issue was joined on these averments, and the statute of frauds was pleaded as against the ratification because there had been no writing signed by appellant to that effect. During the next two years the parties took their proof and at the May, 1913, term the court adjudged that appellant was not entitled to any relief, and dismissed his answer, and from that judgment this appeal is taken.
We are of the opinion that the lower court erred. As. above indicated, T. J. Kendrick was already indebted to appellee in the amount of the note, and it was to secure an old debt that the note was executed and the son, appellant, John D. Kendrick, became accommodation surety for his father. There is no question but what Williams [believed the boy was of age at the time, but it is clear from the proof that he was a minor, and in the argument
Williams, however, insists that the $170.00 credit was paid or authorized to be paid by the appellant.
With the exception of the evidence of Ira Williams^ a son of appellee, and which is subject to the same criticism as above stated, there is no evidence to support this contention. The proof conclusively shows that the payment was not made by appellant. It was paid by an uncle who lived in Pike County and who was indebted to appellant, but the payment was made under the direction of appellant’s father, T. J. Kendrick. This is the only way in which appellant is connected with the credit. There is no pretense of anything in writing, or any memorandum signed by him after arriving at age, which tends to show a ratification of his acts during infancy, as required by the statute of frauds.
Appellee raises a more serious question when he shows that appellant when he tendered his answer failed to accompany it with security for cost as provided in section 414 of the Code, supra. Appellant insists that a bond was tendered at the time, but during the period the court had under advisement his offer to file it, the bond was misplaced, and when the court permitted the answer to be filed the matter of entering the bond of record was then overlooked. The record shows that appellee objected and excepted to the ruling of the court permitting the answer to be filed. Two years later, in fact, just two