115 Ky. 783 | Ky. Ct. App. | 1903
Opinion op the court by
¡Reversing.
At the January term, 1900, of the Marion circuit court, a judgment was entered in the equity suit of Cora Maxwell against Mrs. J. Ann Hood, etc., appointing the appellant, J. M. Knott, trustee of a fund of $1,000, devised by Elizabeth Chandler to Cora Maxwell for and during her .natural life, and at her death to Mrs. Hood and Joseph E. Shelby equally, which was at that time in the hands of the appellee E. L. England, as master commissioner of the court, the fund having arisen from the sale of real property belonging to the estate of Elizabeth Chandler sold under judgment of the court in the settlement of her estate, and the appellee was directed by the judgment to pay the $1,000 to appel
The appellant, Knott, filed a general demurrer to- the response of appellee, on the ground that it did not state facts to support a defense to the rule. Upon the trial of this mo
The first point relied on by appellee is that the judgment of the trial court upon the demurrer is not a final order. In the Ency. of Pleading & Practice, vol. 2, p. 72, a final order is defined as an “adjudication made upon a motion or other application, completely disposing of the subject-matter and the rights of the parties.” In Nelson v. Brown, 59 Vt., 601, 10 Atl., 721, it was said: “A final order is one that disposes of the merits of the cause; that settles the rights of the parties, under the issues made by the pleadings.” In Hovey v. Crane, 10 Pick., 440, it was held that “any order or proceeding which disposes of the cause and places the parties out of the court is- final.”
The distinction between final and interlocutory orders and judgment is often difficult to determine, but, tested by the rulés laid down supra, we are of the opinion that the judgment of the trial court overruling the demurrer to appellee’s response was a final order, as it in effect adjudged that appellant was not entitled to the possession of the trust fund under the judgment, and put him out of court. We therefore conclude that this court has jurisdiction to determine the question upon its merits.
After the entry of the judgment appointing appellant, Knott, trustee, to hold the fund of $1,000 in accordance with the terms and conditions of the bequest in the will of Elizabeth Chandler, and directing appellee to pay it over to him upon demand, neither Cora Maxwell nor her attorney had any legal right to forbid appellee from complying •with that judgment. It was binding upon both appellant and appellee until reversed, modified, or changed by some
For the reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent with this opinion.
Petition for rehearing by appellee overruled.