Minor v. Gayle , 199 Ky. 628 ( 1923 )

Opinion op the Court by

Chiep Justice Sampson — ■

Reversing.

In a suit to settle the estate of G. C. Minor, pending in the Owen circuit court, many items being- involved, a compromise judgment was entered settling all controversies except one between appellee, J. W. Gayle, and appellant, P. 0. Minor, arising out of a draft for $1,113.15 and interest which passed in the business of the Owenton Warehouse and Realty Company, incorporated, and of which draft appellee, Gayle, claimed one-half, but which claim appellant, Minor denied. The judgment of the court entered on December 10,. 1915, among other things ■contained the following:

“Claim of the Owenton Warehouse & Realty Co., on draft the one-half of $1,113.15 and interest. If the party of the second part cannot convince the party of the first part that he has paid or for any reason ought not to pay same and upon failure to do so the matter to be submitted to arbitration.”

The entire proceeding appears to have passed off the docket with the foregoing order. At any rate Gayle and Minor were to agree upon a settlement of their controversy if they could; if not, it was to be submitted to arbitration. When this order was entered the court lost jurisdiction of this branch of the cause as completely as if it had dismissed the case or rendered any other final judgment.

On November 19, 1917, appellee, Gayle, without additional pleadings or notice to Minor caused an order to be entered in the said settlement cause in the Owen circuit court, reading as follows:

“It appearing to the satisfaction of the court, that in an agreement entered in this action on the 10th of December, 1915, and entered in order book No. 50, page 368, there- is a claim of the Owenton Warehouse and Realty Co., on a draft of one thousand and one hundred and thirteen and 15/100 ($1,1.13.15 dollars), which was to have been settled or submitted to arbitration, neither of which has been done. On motion of the Owenton Warehouse Company, the parties, in interest in that claim are given until the first of February, 1918, to settle, same or have tried by arbitration, and if not settled by the parties or by arbitration on or before February 1, 1918, the parties may take proof -after that date and prepare the case for trial at the February term, 1918, of this court.”

This order appears not to have come to the attention of appellant, Minor, although he lived in Owenton near appellee, G-ayle, and his counsel, until long’ after the judgment was entered against appellant on March 7, 1918, when the sheriff presented appellant with an execution for the $794.90 and cost; The judgment reads:

“In the claim of the Owenton Warehouse & Realty Co., in this action against the estate of G-. 0. Minor, deceased, and P. 0. Minor, it is agreed that said estate and P. 0. Minor are indebted to the said warehouse and realty company in the sum of $1,113.41' with interest thereon from Jan. 19, 1911, which amounts to the sum of $1,589.80 at this date, and that one-half of said sum is due to said P. 0. Minor and the other one-half is due to J. W. Gayle (said Gayle and Minor being the owners of the capital stock in said warehouse company). It is therefore adjudged, by agreement of the parties that said Owenton Warehouse & Realty Co., for the use and benefit of J. W. G-ayle, to recover of said P. 0. Minor the sum of seven hundred and ninety-four dollars and ninety cents ($794.90) with interest thereon at the rate of six per cent per annum from the 6th day of March, 1918, until paid, and his costs herein expended, and for all of which execution may issue when called for by said Gayle or his attorney, which is. not to be called for until the first day of the February term, 1919, of this court.”

As it is admitted that no arbitration was had of the controversy by the parties, we think upon proper showing made by amended pleading in the same case if upon docket, or by original action if the old action has been stricken, appellee Gayle could have brought the cause before the court for trial and final determination, despite the order of arbitration, but to have put himself in position to insist upon a judgment against appellant process necessarily had to issue against and be duly served upon appellant. The machinery of the law for the determination of the controversy between appellee, G-ayle, and appellant, Minor, could thus have been set in motion and the judgment entered pursuant thereto if properly and regularly found would have concluded the parties. But as no amended pleading stating a cause of action against appellant, Minor, was filed and no process was issued against appellant, the judgment was without virtue. The parties are entitled to prepare and try this cause, and upon a return of the case to the lower court an injunction will be awarded appellant, Minor, staying tbe collection of tbe execution until further order of tbe court, and granting to each party reasonable time to plead to an issue and otherwise prepare their case.

For tbe reasons indicated tbe judgment is reversed for proceedings consistent herewith.

Judgment reversed.