Shelton v. Shelton, 167 Ky. 167

167 Ky. 167 | Ky. Ct. App. | 1915

Opinion of the Court by

Chief Justice Miller

Affirming.

The appellant, Edgar Shelton, and the appellee, Alta Shelton, were married ini Allen county on March 16th, 1913. They lived together as husband and wife, until August 30th, 1913, when Edgar left his wife and sued her for a divorce upon the ground of lewdness.

Having failed in his action, his wife brought this action on January 6th, 1911, for a divorce from bed and board, and for the maintenance of herself and child, alleging as her ground for relief that Edgar Shelton had been guilty of extreme cruelty in mailing the unfounded charge of lewdness against her in the first suit. She also alleged that he had disposed of all of his personal property, but that he yet had a one-eighth undivided interest in two tracts of land, which,lie would dispose of for the purpose of defeating her claim for alimony, unless an attachment should issue against it. She alleged that the disposition of Edgar’s property was made in order to cheat, wrong and defraud her.

The answer traversed the allegations of the petition.

On January 22nd, 1914, an order was entered making the wife an allowance of $10.00 per month pendente lite. However,, on January 21st, 1914, the day before the order was made, Edgar Shelton conveyed his one-eighth interest in the land above mentioned to his uncle, Jerry Shelton, for the recited consideration of one hundred dollars, cash in hand paid. On August 20th, 1914, his wife filed an amended petition, in which she attacked the conveyance to Jerry Shelton as fraudulent/ describing' the property, and making Jerry Shelton a defendant. He answered, denying the fraud, and avowing that his purchase was in good faith and for full value.

Upon proof taken, the circuit court granted the plaintiff a divorce from bed and board, and allowed her alimoney in the sum of $200.00, and an attorney’s fee of $25.00.- The judgment also declared the sale to Jerry Shelton to be fraudulent, set it aside, and subjected the land to the payment of appellee’s judgment against her husband.

From that judgment Edgar Shelton and Jerry Shelton prosecute this appeal.

Jerry Shelton was the deputy sheriff, and from the proof it is reasonably certain not only that he was fully aware of .the claim the appellee was making against her husband for alimony, and knew beforehand that the motion for alimony would be made on January 22nd, 1914, but that he participated in the fraud of Edgar. He had served some of the subpoenas and notices in the case, and when he accepted the deed from Edgar Shelton on-the day before the order was made, he did so with full knowledge of all the facts attending appellee’s claim against her husband, and his fraudulent intent in making the conveyance.

Upon the issue as to the value of his one-eighth interest in the land, the proof is quite conflicting, Jerry’s witnesses valuing the land at about $1,000.00 or $1,200.00, while some of appellee’s witnesses put the value as high as $2,500.00. There is little doubt that the tract of land is worth from $1,500.00 to $2,000.00, and that the value of Edgar’s interest therein was worth much more than $100.00; and that appellant’s witnesses unduly depreciate the value of Edgar’s one-eighth interest therein because it is subject to the life estate of his mother, who is eighty years of age.

Upon a full consideration of all the evidence, the chancellor declared the conveyance from Edgar to his uncle .Jerry to be fraudulent as against the claim of the appellee, and we are of opinion that the testimony sustains the chancellor’s finding. But, if we were in doubt of the correctness of that finding, we would be slow to reverse the judgment, under the rule which requires us to not disturb the finding of the chancellor upon the issue of fact where "the proof is contradictory and the mind is left in doubt.

It is insisted .that the judgment erroneously recites that an attachment had been issued herein and levied upon the land (when, in /act, no attachment was issued), and, that by reason of the attachment,-the plaintiff had .a lien upon Edgar’s interest therein. The judgment inadvertently does recite that an attachment had been issued ; but the amended petition specifically described the land, and attacked the conveyance from Edgar to his uncle Jerry upon the ground of fraud, thus securing to the plaintiff a lien which the court properly enforced. Ky. Sts., sec. 1907a; Campbell v. Trosper, 108 Ky., 602; Williamson v. Norris, 166 Ky., 231. The recitation that the lien had been created by an attachment rather than by the proceeding that was taken, was unimportant.

Section 739 of the Civil Code requires the appellant to file with the transcript a statement showing the page •of the record on which the judgment appealed from may be found. The statement of appeal in this case recites that the judgment appealed- from ‘ ‘ is duly recorded in Civil Order Book No. 3, page 623.”

Instead of complying with the provision of the code, “the statement in this case gives the page of the order book in the Allen circuit court upon which the judgment is recorded. As there was, however, no motion made to dismiss the appeal for this failure to comply with the code it will be treated as waived.

Rule 3 of the court requires that every brief shall be .accompanied by a classification of the questions discussed, with a citation of the authorities relied on, under the ■proper headings. No attempt has been made by appellant to comply with this rule; but, as no motion has been made by tbe appellee to take advantage of that irregularity, it will be treated as waived in so far as it concerns tbe appellee. Tbe court of its own motion, however, strikes both briefs from tbe record.

Judgment affirmed.