118 Ky. 757 | Ky. Ct. App. | 1904
Opinion of the court by
Reversing.
It appears that one William Williams died a few years-since, leaving surviving him a second wife, Harriet Williams, an infant son by her, the appellee, and four children by a former marriage, all of whom were over the age of, twenty-one years at the time of his death. He was the owner, at his death, of a house and lot in the town of Pikeville,. upon which he was residing at the time. His widow and infant child remained in the possession of this- property for a year or two, when she sold her interest to appellant for-the price of $150, and left the State, and went to the State of West Virginia.. Appellant took possession of this property, under his purchase, and occupied it until the- time when the judgment complained of herein was rendered. U. K.. Williams, a son of the deceased^ purchased the interests of his three sisters in this property, and instituted this action against appellant, by which he sought to recover from him $85 as his share of the rent of this property while appellant occupied it. Appellant answered, controverting the claim, and alleged that he was the owner by purchase of the widow’s homestead in the property, and that she was still living. He afterwards amended his answer, and withdrew his claim that he had purchased her “homestead,” but at
On the 2d of October, 1902, the court made the following order: “Affidavit of W. H. Flannery filed; also affidavit of Harriet Williams filed. And upon motion of W. H. Flannery, attorney for said infant’s interest, and the court being sufficiently advised, orders that W. T. Phillips, the present guardian of said infant Willie Williams, is not a proper person as guardian of said infant, and therefore removes him as said guardian, and thereupon appoints James Sowards as guardian ad litem for said infant, Willie Williams, who, being present, accepts said appointment. To this order said Phillips objects and excepts.” This order is the only evidence in the record that appellant was ever the guardian of the appellee, and, even if he was the guardian, the court had
We are of the opinion that the court erred. The issues between the parties had not been tried, and it was not known
For these reasons the judgment of the lower court is reversed, and the cause remanded for further proceedings consistent herewith.