Halcomb v. Cole

Opinion of the Court by

Judge Settle

Reversing.

This ease is a companion of that of Halcomb v. Cor-nett, et al., decided by this court January 23, 1912, tbe opinion being reported in 146 Ky., 339. In that case the administrator declining to sue, tbe action was brought by Cynthia Cornett and other heirs at law of Isom Stamper against Jesse Halcomb, for the recovery of $1,600, the purchase price of 400 acres of land which their ancestor had sold and conveyed to Halcomb. Hal-comb answered pleading the statute of limitations in bar of the action and fraud in the sale and conveyance of the land. These defenses were disregarded by the circuit court, and judgment went against him for the amount sued for, with interest, and a sale of the land was directed to pay same. On appeal, that judgment was reversed by us upon the ground that the action was barred by the statute of limitations, and the cause was remanded to the circuit court with directions to set aside the judgment appealed from and, in lieu thereof, to enter another dismissing the petition.

It appears from the record before us on this appeal, that the appellee, Bertha Cole, who is an heir at law of Isom Stamper, was a plaintiff in the former action and one of the beneficiaries of the judgment originally rendered therein by the circuit court and later reversed by this court; but that by accident or mistake she was not made a party to the appeal prosecuted therefrom to this court. The object of the present appeal, which is prosecuted by the appellant, Jesse Halcomb, against Bertha Cole as appellee, is to obtain the reversal of the original judgment as to her.

As the interest of the appellee, Bertha Cole, in the subject of the action was the same as that of the other plaintiffs therein, and the reversal would have gone against her, as against the other appellees on the first appeal, had she been a party thereto, it necessarily follows that the reversal of the judgment asked as to her on the present appeal should be granted; the opinion oft the former appeal being conclusive of the same questions presented by the present appeal, which was granted by the clerk of this court upon the filing of the transcript within two years next after the judgment of the circuit court was rendered.

For the reasons indicated, the judgment is reversed as to the appellee, Bertha Cole, and the cause remanded' with directions to the circuit court to set aside the judgment and to dismiss as to her, the petition in the action brought by her and the other heirs at law of Isom Stamper against the appellant, Halcomb,