162 Ky. 517 | Ky. Ct. App. | 1915
OPINION OP THE COURT BY
Reversing.
On November 1, 1912, John W. Ray executed to A. L. Edwards Ms promissory note for $2,000, payable in six months, and secured by 200 shares of stock of the Inter-Southern Life Insurance Company. The note was sold, transferred and assigned to T. B. Ellis. By mistake suit was brought on the note on March 18, 1913, in the name of A. L. Edwards, instead of T. B. Ellis, the assignee. The action was never set at rules, and was dismissed without prejudice on July 17, 1913. The next day Ray filed in the clerk’s office an answer and counter-claim.
The Inter-Southern Life Insurance Company has taken over the assets of the Southern National Life In-' surance Company under an arrangement by which it was to issue its own stock in lieu of the Southern National Life Insurance Company stock.
On September 26, 1913, this action was brought by plaintiff, T. B. Ellis, the assignee of the note, against the defendant, John W. Ray, and the two insurance companies, to recover on the note, and to enforce Ms lien on the stock. The insurance companies were made parties for the purpose of having the Inter-Southern Life Insurance Company issue its stock in lieu of the Southern National Life Insurance Company’s stock which had been deposited as collateral security. Demurrers were filed by the two insurance companies, but without authority. The case was regularly set at rules, and, upon the calling of the docket on November 20, 1913, Ray filed a plea in abatement, setting out the pendency of the former action, and filing as exhibits the petition, answer and counter-claim filed in that action. On November 8, 1913, the action was again set at rules, and a reply to the plea in abatement filed. On May 11, 1914, long after the time for taking proof had expired, the case was regularly set at rules, called upon the docket, and submitted. The first record was sent out with the case, and, on the Saturday following the submission, Judge
Defendant, however, insists that the judgment itself was erroneous. It first adjudged a recovery in favor of plaintiff for the sum of $2,000, with six per cent, interest from the date of the note. It further directed the Inter-Southern Life Insurance Company, in the event of Ray’s refusal to endorse the certificates, to issue new cei'tificates of its own stock in lieu of the stock of the Southern National Life Insurance Company, and that this stock be issued to plaintiff’s attorney. Manifestly, tbe effect of the judgment is to give plaintiff the stock without giving defendant Ray any credit therefor on the personal judgment obtained against him. The judgment should have adjudged plaintiff a lien and directed a sale of the stock by the commissioner after due advertisement.
Judgment reversed and cause remanded, with directions to enter judgment in conformity with this opinion.