87 Ky. 173 | Ky. Ct. App. | 1888
delivered the opinion op the court.
J. B. Cochran, as the committee of Gustavus Trunk, procured a decree on June 27, 1879, in the Louisville Chancery Court, to sell a lot of laud belonging to the lunatic. In the proceeding he executed bond in conformity to section 493 of the Civil Code, with W. N.
Several defenses were presented, among them being one to the effect that in June, 1881, the then committee had brought an action in the Louisville Chancery Court to set aside the sale to the appellee, Cromie, upon various grounds, one being that the sale was the result of a fraudulent combination between the then committee and the purchaser, and that it was then pending. The suit so named is the one we are now considering.
The action by the asylum was transferred to the chancery court, where the two cases were ordered to be “heard together.” This was in effect an order of consolidation, and should be so regarded. It was properly made, because of the connection between the two actions, the one depending upon the result in the other.
The court rendered a joint judgment in accordance with a written opinion, disposing of both actions, but the caption only gives the style of what, for convenience sake, we will call the asylum suit. It refused to vacate the sale, and allowed the asylum, as against the sureties of Cochran, one thousand five hundred and forty-five dollars and sixty cents, being the portion of the purchase money of the lot that Cochran, in its opinion, had failed to account for; but it also found that Cochran had, in effect, used eight hundred dollars
Evidently the word “Supreme” was intended for 'Superior,” and was a clerical mistake; but, in any event, if the appeal be now pending in this court, it is in what is to the lower court, so far as appeals are concerned, the Supreme Court.
The statement for the appeal in the asylum case was made out for this court; it was brought here, and reversed on January 10, 1885, this court in substance holding, that where the creditor of a lunatic is suing to recover from the sureties of a committee the purchase money the latter has obtained by a sale of the lunatic’s property, and the successor of the defaulting
In some way, probably by mistake, the statement for the appeal in this case was made out for the Superior Court, while the schedule in directing what portions of the record should be copied, provided that no part of it that had been copied in the transcript of the asylum case should be again copied. This doubt-'' less arose from the supposition of the attorney that both appeals would (as would have been proper) be in the same appellate court.
As the petition in this action, the opinion and judgment of the court had been copied in the transcript of the other case, it resulted in their not being copied into the one for this appeal.
The clerk of this court is, however, ex officio the clerk of the Superior Court; and both transcripts were filed in his office.. It is proper, therefore, as the appeal was granted by the lower court, to treat this as having been a pending appeal in this court ever since the record was filed, if the jurisdiction did not belong to the Superior Court. The transcript was filed in the clerk’s office within the proper time after the granting of the appeal below. On November 26, 1884, a motion was made in the Superior Court to transfer the case to this court, where the asylum suit Avas then pending. It embraced a request, which was entered upon the order-book, but not indorsed upon the record, to consider upon the motion the transcript in the asylum case. The motion Avas overruled, because the transcript
The act creating the Superior Court provides that if an appeal be taken to it, when this court has jurisdiction, the case shall not be dismissed, but shall be transferred to this court. It was apparent that the Superior Court had no 'jurisdiction of the appeal. It had no power, therefore, in the case, save to relinquish the control of the record, to which it had no right, by an order of transfer. Any other order in it was coram non juclice. In such a case we are loth to hold that, upon the refusal to transfer, a party must go to the unnecessary cost and trouble of dismissing his appeal and taking a new one.
It is apparent that the complaint of the committee is meritorious and well-founded. The undue haste attending the sale of the lunatic’s property, and the hurried subsequent proceedings relating to it, readily create suspicion. The sacrifice of the property, and .the helplessness of the unfortunate owner, demand that the sale shall be vacated, unless it be supported by entire fairness and good faith.
The appellee, Cromie, had loaned to the then committee a railroad bond, which he had pledged for his individual benefit. The appellee was clamoring for its return. The committee agreed with him, that if he would buy the lunatic’s property, he (the committee) would use enough of the proceeds to redeem the bond and return it to the appellee. This was in effect the payment of a loan made by the appellee to Cochran.
Having entered into an unlawful combination with the trustee, Cochran, the appellee must look to him for any purchase money paid to him, and which was not, in fact, paid out for the benefit of the lunatic.
The judgment is reversed, and cause remanded to the lower court for further proceedings in conformity to this opinion.