Pickerell v. Thompson

OPINION OF THE COURT BY

JUDGE WHITE

AFFIRMING.

In February, 1894, William A. Wilson and George W.. Wilson made assignments to appellant, Pickerell, for the benefit of their creditors. The deeds of assignment were separate, but executed the same day. The Wilsons were brothers, and had been in the habit of signing each other’s, notes as surety; and sometimes one brother would sign both names to the same paper, so that a failure involved both, although their business was not joint. The appellant, as assignee of- two estates-, proceeded in the county court under the act of March, 1894, when that act became-'operative, and in June, 1896, made a settlement in the county court of the estate coming into his hands; bu,t the settlement did not give to appellant a dischange or acquittal -as assignee. In this settlement the county court allowed the assignee in each case the sum of $1,500 for his. services, and also allowed to his attorney, Harry Kennedy, $600 in each ease. In the same order of the county court a pro rata distribution of the assets was directed.

In September, 1897, appellees, Thompson and others,, creditors of the Wilsons, filed two actions in the circuit court of Nicholas county, alleging the facts substantially as above, and sought to surcharge the settlement made in the county court to the extent of the allowances to the as-signee and to his attorney. The attorney was not made a party, however. The assignee is sought to be charged with both sums. It'is alleged that the assets in each case were about $20,000, and that the creditors had received, under-orders from the county court, 37 per centum of their debts..

Appellees alleged that the allowances of $1,500 to appellant and $600 to his attorney were illegal and exorbitant, and should not have been allowed. By consent the two actions to surcharge the settlements in the circuit court were consolidated and heard as one case. Appellant filed a demurrer to the petition, and, this being overruled, answered. The answer pleads that the allowances were regular, legal, reasonable, and just; that they were made by the county court, which had full jurisdiction of the subject-matter and the parties; and that its judgment was final and conclusive unless reversed by appeal prosecuted within sixty days. Upon trial, after much proof was taken, the court allowed to appellant, as assignee, the sum of $1,000 in each case, and reallowed the attorney’s fees at the same figure fixed by the county court. From that judgment the assignee prosecutes this appeal, and the creditors complaining- prosecute a cross appeal.

Section 88, Kentucky Statutes, governing voluntary assignments, provides for an appeal to the circuit court from a judgment, of the county court overruling or sustaining an exception by the assignee or any creditor. Section 89 provides that all proceedings in the county court shall be ex parte, and upon motion, but when exceptions are filed the party affected shall have ten days’ notice of the time of trial. We are of opinion that the appeal provided for in •section 88 applies to. cases where exceptions are filed under .section 89, and where the proceeding is ex parte, and without exception or notice, and formal trial in the county court upon some matter presented therein, an action in equity lies in the circuit court to surcharge any error in the settlement, as in other ex parte settlements, such as administrators, curators, executors, and the like. We are •of opinion that it was not intended to limit to appeal within sixty days any interested person’s right to correct an error in the settlement with the county court, oí which he had only constructive notice by reason of filing his claim. It is only when such interested person becomes a party to the record by exception, and .notice is given of a day for trial — an issue formed— that the remedy is limited to appeal. Therefore the petitions state a cause of action, and the demurrer thereto was properly overruled. It also follows that the answer pleading the judgment o.f the county court fixing the allowances did not constitute a defense, and a demurrer thereto was properly sustained. From the proof in the case, we do not feel inclined to disturb the judgment o.f the circuit court. 4

The allowance to the assignee is approximately 5 per centum of the assets of the estates, and, while the law does not fix the amount to be allowed in these cases, we think the proof in the case, and the analogy to allowances fixed by statute in other trust estates, fully warranted the court in fixing the allowances at $1,000 in each ease.

The attorney, Harry Kennedy, is not a party to the appeal, and hence it is doubtful if the judgment allowing him attorney's fee in each case is subject to revision; but, if it were, we think it is fairly shown that his-services rendered the assignee and the estate were reasonably worth that sum. Both the county and circuit courts agreed that the attorney had earned $600 in each case, and also agreed that the assig'nee had earned as much as $1,000 in each case, and these sums allowed meet our approval.

The judgment is affirmed on the original and on the cross appeal.