82 S.W.2d 828 | Ky. Ct. App. | 1935
Reversing.
A house and lot on the southeastern corner of East Arch street and Harrig street in Madisonville, Ky., belonging to E.R. Allen, was sold by order of court to satisfy liens against it, and the appellants are complaining of the way the proceeds were distributed.
On May 17, 1927, the city authorities ordered Harrig *629 street to be improved and paved at the cost of the abutting property. An ordinance accepting the work and apportioning the cost was passed and approved December 22, 1927, and on January 20, 1928, E.R. Allen elected to pay on the ten-year bond plan the $533.63 apportioned against his property.
Allen met his payments upon this mortgage lien up to and including May 20, 1930, and met the payments upon the bonds issued for street improvements to and including January 1, 1930.
September 17, 1931, the Security Trust Company filed in that suit its intervening petition asserting its ownership of the bonds issued for the improvement of East Arch street; that there was a balance due it thereon from this Allen property of $86.11, with interest from January 1, 1930, and a penalty of $8.61 under section 3575, Ky. Stats.
On the same day the appellant White Construction Company filed its intervening petition asserting its ownership of the bonds issued for the improvement of Harrig street; that there was a balance due thereon from this Allen property of $426.89, with interest from January 1, 1930, and a statutory penalty of $42.68.
Each claimant insisted his was a first lien. No question was made regarding the amounts due on the claims asserted. Judgment went by default for claims, penalties and costs as asserted and the property was sold and brought $900.
The appellants established by evidence that at the time of the completion of these improvements this property was worth $2,000 or more. The appellee did not question that, but insisted this value was to be determined as of the date it was sold and by the sum it brought at the sale. City of Mt. Sterling v. Reis,
The appellee has prayed and has been granted a cross-appeal by which it asks us to correct certain allowances made to the master commissioner direct for the allowance of which it alleges that there, is no warrant of law. The master commissioner is the only one affected by this motion, he is not an appellant, hence this cross-appeal was inadvertently granted, and the order doing so is now set aside and the motion for a cross-appeal is overruled. A cross-appeal can only be taken against an appellant. Hessig v. Hessig's Adm'r,
Judgment reversed.