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ceptions in this case, which is a suit for the for re-election, Freeman was elected as one recovery of money, only demonstrates con- of three new members; Chapman being declusively that the amount in controversy and feated for re-election. After this Chapman, claimed by appellant is much less than $500, who had been chairman of the old board, unand while there is some evidence tending to dertook to continue to exercise or attempt show that the amount in controversy, exclu- to exercise the duties of the office of chairsive of interest and costs, is in excess of man, claiming that Freeman, who was also $200, an examination of the record does not undertaking to exercise the duties of the ofshow any error prejudicial to the substantial fice by virtue of his election in May, 1915, rights of the appellant, and does not satisfy was not, in fact, elected, or entitled to act as the court that the ends of justice require a a member of the board, for reasons that will reversal of the judgment. Neither the con- be presently pointed out. Whereupon, as struction or validity of any statute or any stated, Freeman brought this suit. section of the Constitution is involved.

Section 4485 of the Kentucky Statutes proThe appeal is therefore dismissed, without | vides: any written opinion upon the merits of the “After the first election provided for in this controversy.

law shall have been held, the tax voted, trustees elected, and the graded common school organized, the board of trustees shall appoint the officers to

hold all other elections, which officers shall CHAPMAN v. FREEMAN.*

take an oath to be under the same responsibil(Court of Appeals of Kentucky. Nov. 4, 1915.) ities and subject to the same penalties as the

officers holding state or county elections, only SCHOOLS AND SCHOOL DISTRICTS Om53–TRUS- they shall make returns of poll-books, and cerTEES-ELECTION-TITLE TO OFFICE-ACTION tify the result of the elections to the board of FOR OFFICE. Under Ky. St. 4485, providing that the same and issue certificates to the persons found

trustees, who shall examine and compare the board of trustees of graded schools shall ap- to be elected." point the officers to hold elections, who shall make returns of poll books, and certify the re

It will be observed that under this section sult of the elections to such board, who shall the board of trustees should appoint the elecexamine and compare the same, and issue certifi- tion officers and that the officers should recates to the persons fourd to be elected, one has not title to the office of trustees, so as to have turn the poll books and certify the result of right to maintain action to enjoin another from the election to the board, who, after examinasserting title to, or exercising the duties of, ing and comparing the same, should issue such office, he not having a certificate from the certificates to the persons found to be electboard, issuance of which he could, if necessary, compel by mandamus, but the officers appointed ed. There were five candidates for trustee to hold the election certifying the result, show at the election, namely, Freeman, Chapman, ing his election, to the superintendent of schools, Young, Treadway, and Clark. Freeman, and he administering the oath of office to those Clark, and Young each received more votes returned as elected.

[Ed. Note. For other cases, see Schools and than did Treadway or Chapman, and so the School Districts, Cent. Dig. $ 113, 127-135; officers of election certified to the county Dec. Dig. Omw 53.]

superintendent of schools that Freeman, Appeal from

Young, and Clark had been elected trustees, Circuit Court, McCreary,

and the county superintendent of schools adCounty.

Action by J. B. Freeman against John ministered the oath of office to these perChapman. Judgment for plaintiff, and de- sons, and thereupon they entered upon the fendant appeals. Reversed, with directions. discharge of their duties as trustees of the

graded school, although the result of the John W. Sampson, of Whitley City, J. W. election was not certified by the officers of Rawlings, of Danville, and I. N. Steely, of election to the board of trustees, nor did the Williamsburg, for appellant. James Denton, board of trustees issue a certificate of elecof Somerset, and Stephens & Gilreath, of tion to either Freeman, Clark, or Young. . Whitley City, for appellee.

On this appeal it is insisted that the peti

tion of Freeman should have been dismissed CARROLL, J. The appellee, Freeman, in the lower court because, assuming that claiming to have been elected as one of the Chapman was interfering with him in distrustees of the Greenwood graded school, in charging the duties of the office of trustee, McCreary county, and afterwards made Freeman could not maintain an action to chairman of the board, brought this suit prevent this interference, as the election reagainst the appellant, Chapman, to enjoin turns had not been returned to the board of him from attempting to exercise the duties of trustees, or examined and compared by them, the office of chairman of the board of trus- nor had they issued to Freeman the certifitees and holding himself out as a member of cate of his election. Taking this as a basis, the board and chairman thereof. The circuit the argument is made that Freeman, at the court granted Freeman the relief prayed for, time he brought this suit, was not a trustee and Chapman appeals.

of the graded school, and, of course, if this It appears that at an election held in May, I position is well taken, he could not maintain 1915, for the purpose of electing three trus- this action. tees, at which election Chapman, who was a A strict and literal observance of the statmember of the old board, was a candidate ute should not be required, where the elec

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Ky.)

HESTER v. HESTER

451

tion has been honestly conducted and the der to obtain the possession of an office. The result fairly arrived at. All that is neces-circuit court sustained a demurrer to his pesary is that there should be a substantial |tition and he appealed. In the opinion the compliance with the requirements of the court said: statute. But elections like this are to be “The demurrer to the petition was properly held under the supervision and direction of sustained, for the reason that the plaintiff must the board of trustees of the graded school, recover, if at all, on the strength of his own tiand it is the duty of the officers of election tle, and he shows no right in himself to the of

He has neither a certificate of election appointed by them to return the poll books, from the proper authorities nor a commission with their certificate, showing the result, to from the Governor. Although he received a mathe board of trustees, and the duty of the jority of the votes cast at the election, and al

though the election was valid in every other reboard of trustees to examine and compare spect, still he is not entitled to be inducted inthe same, and, if correct, to issue certificates to office until the result of the election has been to the persons found to be elected. And the determined in the manner prescribed by law. issual of a certificate by the board to the per- premises, his remedy is by mandamus against

If any officer has failed to do his duty in the son found by it to have been elected is, we that officer.” think, indispensable to confer upon the per- To the same effect are Wilson v. Tye, 126 son elected the right to maintain an action Ky. 34, 102 S. W. 856, 31 Ky. Law Rep. 491; to prevent interference by another who is Dorain v. Walters, 132 Ky. 54, 116 S. W. also claiming the office. It is the certificate 313; Wooton v. Wheeler, 149 Ky. 62, 147 S. that gives the person elected title to the of

W. 914. fice, and although a person may have received the majority of the votes at an elec- directions to dismiss the petition.

Wherefore the judgment is reversed, with tion regularly held, until he has this insignia of office, he is not in a position to bring a suit like this. There is no claim in this case that the

HESTER v. HESTER. board of trustees refused to issue a certifi- (Court of Appeals of Kentucky. Nov. 4, 1915.) cate to Freeman; but, if such a case should 1. WITNESSES w 60HUSBAND AND WIFEarise, a trustee who was elected could com- WHEN COMPETENT-DIVORCE, pel the board by mandamus proceedings to

In a wife's action for divorce upon the

ground that the husband had attempted to inissue him a certificate. In behalf of Free- jure her, so as to indicate probable danger to man the argument is made that, although he her life or great bodily injury if she remained did not have a certificate from the board of with him, it was error to allow the wife to testrustees showing his election, he was, never- tify as to her residence, since under the specific

provisions of Civ. Code Prac. § 606, as amended theless, a de facto officer, and therefore had by Act March 15, 1912 (Acts 1912, c. 104), a right, not only to discharge the duties of the husband and wife are competent witnesses the office, but to maintain an action against against each other in an action for divorce only Chapman for disturbing him in the perform- upon the issue of probable danger or great bodily

injury to the wife as specified therein. ance of his duties.

[Ed. _Note.-For other cases, see Witnesses, We do not find it necessary in this case Cent. Dig. $$ 167–173; Dec. Dig. Om60.] to determine the extent of the right of a 2. COURTS 223—COURT OF APPEALS - JUde facto trustee to discharge the ordinary RISDICTION. duties of the office in a case where his

The Court of Appeals has no jurisdiction power is questioned.

to reverse a judgment granting a divorce. The point presented

[Ed. Note.-For other cases, see Courts, Cent. as necessary to a decision does not require Dig. $$ 600, 601, 603-606; Déc. Dig. 223.] us to go any further than to hold that a 3. DIVORCE 286–RESTORATION OF PROPERcertificate showing his election is necessary TY-APPEAL-FINDINGS-CONCLUSIVENESSto confer upon a trustee claiming to be

EVIDENCE-EFFECT. elected the right to enjoin another person there is a prayer for money belonging to her

Where, in an action for divorce by the wife, from asserting title to the office. In Hughes wrongfully withheld by the husband, and the eviv. Roberts, 142 Ky. 142, 134 S. W. 168, Ann. dence on that issue is such as to leave the mind Cas. 1912D, 148, the court cited with ap- in doubt as to the truth, the finding of the chanproval from a North Carolina case the fol. cellor will not be disturbed on appeal. lowing:

[Ed. Note.-For other cases, see Divorce, Cent.

Dig. 88 769, 770; Dec. Dig. www286; Appeal "An essential element of a valid election is and Error, Cent. Dig. $ 598.] that it shall be held by lawful authority, substantially as prescribed by law. It is not sufli- Appeal

from

Circuit Court, Simpson cient that it be simply conducted honestly; it County. must as well have legal sanction. The statutory

Action by Sarah Hester for divorce from provisions and regulations in respect to public elections in this state must be observed and pre-Dan Hester, and the restoration of property vail, certainly in their substance. Otherwise, and money. From a judgment granting a the election will be void, and so treated. There- divorce, but refusing to restore property or fore the contention that, if the election in ques- money, plaintiff appeals. Affirmed. tion was simply conducted fairly and honestly, it was valid, is unfounded."

John J. Milliken, of Franklin, for appelIn Watkins v. Snyder, 148 Ky. 733, 147 s. lant. G. W. Merritt, of Russellville, for apW. 899, Watkins brought a suit against Sny- pellee.

HANNAH, J. Şarah Hester sued Dan | divorce with costs, including a fee to plainHester in the Simpson circuit court for a di- tiff's attorneys) considered the matter, and vorce from the bonds of matrimony. She that he declined to render any judgment obtained it, but appeals from the judgment. against the defendant in this respect because

[1, 2] The cause of divorce alleged in the of the unsatisfactory and indefinite state of petition was an attempt to injure the plaintiff, the proof. such as indicated probable danger to her life Upon a consideration of the evidence in or great bodily injury from her remaining respect of this claim concerning money loanwith the defendant. Section 606 of the Civiled to the defendant and its repayment, the Code, as amended by the act of March 15, mind is left in doubt as to the truth of the 1912 (Acts 1912, c. 104), provides that in matter; and, where this is the case, the findactions for divorce, where such a charge is ing of the chancellor will not be disturbed on made, either or both the parties may testify. appeal. Robinson-Pettit Co. v. Sapp, 160 Ky. But this means only that they may testify 443, 169 S. W. 869; Gragg v. Barton's Adm'x, concerning facts bearing upon the grounds 161 Ky. 210, 170 S. W. 621 relied on as specified in the act. By that Judgment affirmed. amendment, the wife was not made a competent witness to prove the facts in respect of her residence as was done in this case;

BOONE et al. v. ROBINSON et al. and, there being no proof other than her own (Court of Appeals of Kentucky. Nov. 4, 1915.) in that respect, the chancellor should not

BOUNDARIES 46-AGREEMENT-EFFECT. have granted the divorce. Section 422 of the

There having been no shortage in a lot, Civil Code. However, we have no jurisdic- when partitioned between R. and B., R. waived tion to reverse the judgment granting a di- no rights and conceded no part of his share,

where he, while erecting a partition fence, on vorce.

claim of B, that there was a shortage, agreed [3] 2. It was charged in the petition that to remove the fence if it should later be estabthe defendant had in his possession about lished that he had inclosed more than the part $2,000 of the plaintiff's money, and plaintiff to which he was entitled, though it developed complains because the judgment did not or- his part of the lot.

that B. had permitted another to encroach on der the restoration of this sum to her. This [Ed. Note.-For other cases, see Boundaries, was a second marriage for both of the par-Cent. Dig. $S 212–226, 249–251; Dec. Dig. Om ties. The plaintiff was in comfortable cir- | 46.] cumstances at the time of the marriage, and

Appeal from Circuit Court, Clark County. is yet so. The defendant had no property of

Action by Mary E. Boone and others any consequence at that time, and has but against William S. Robinson and others. little now. He was, however, a trader of Judgment for defendants, and plaintiffs apno mean ability; and it seems from the

peal. Affirmed. record that by dealing in live stock, which he purchased with funds advanced to him from J. Smith Hays, Elmer D. Hays, and J. time to time by his wife, he earned some Smith Hays, Jr., all of Winchester, for approfits. She admits that he repaid to her pellants. J. M. Stevenson, of Winchester, several sums which she so advanced to him, for appellees. but claims that he failed to repay others; and on this question the competent evidence NUNN, J. This is a second appeal. The is conflicting and very unsatisfactory. The appellees were the plaintiffs below, and at trouble between them while they lived to the first trial demurrer was sustained to gether seems to have been, not so much the their petition. This court held that the failure to repay these sums as their inabili petition stated a cause of action, and the ty to agree as to who was entitled to the judgment was reversed. 151 Ky. 715, 152 profits arising out of these transactions, and S. W. 753, Ann. Cas. 1915A, 352. Issues were as to which should carry the money. The then joined, and upon the proof the court husband contended that it was inconvenient rendered a judgment for defendants, and the and embarrassing to be compelled to return plaintiffs again appeal. home to get money every time he purchased The heirs at law of J. W. Ried's deceased property, and the wife insisted that she had wife, who are the appellants here, and J. W. been the treasurer of the first marital firm Ried owned jointly a lot in Winchester, with which she was connected, and that a fronting 38 feet and 5 inches on Main street, second term in that office was not inhibited and extending 210 feet to an alley in the by the Constitution or the law of the land. rear. August 1, 1908, Ried and the heirs at And about this they could not agree.

taw agreed to partition the lot and exchanged There was no prayer in the petition for deeds therefore, whereby Ried took the south the restoration of property, but, as there portion of the lot, fronting 20 feet on Main was quite a great deal of testimony in the street, and the heirs took the north portion, record upon this subject, we assume that the fronting 18 feet and 5 inches on Main street. chancellor (although the judgment makes no The parties supposed that the lot was a recmention of this issue and merely grants the I tangle, and that they were getting an equal

Ky.)

DYER v. DYER

453

frontage on the alley as well as on Main, by Ried of his rights, nor a concession of street. The southern portion which the heirs any part of his lot. The effect of this agreetook adjoined a lot which belonged to the ment was that, if it should be established Stubblefield estate, and they were among the that at the time they divided the lot there heirs of that estate. August 28th they join was less frontage on the alley than on Main ed with the heirs of Stubblefield in con- street, then Ried would tear down his fence, veying to Piersall that part of the Stubble- and place it upon the real line, after bearfield lot adjoining the lot which they re- ing his part of the shortage. But, as found ceived in the partition of the Ried property. by the court, there was no shortage; that is, On January 18, 1909, Ried undertook to build there was an equal frontage on the alley and a fence between the lots partitioned in order street at the time Ried and the appellants to inclose for himself a rectangle fronting divided the lot. 20 feet on Main street and the alley. But The judgment is therefore affirmed. the appellants objected, because they discovered that the frontage of their lot on the alley would be less than it was on Main

DYER v. DYER et al. street, and insisted that Ried should bear a

(Court of Appeals of Kentucky. Nov. 4, 1915.) proportionate part of the shortage.

EMINENT DOMAIN On 157 CONDEMNATION The proof in the case shows that there was

AFTER ALLOTMENT OF DOWER-VALUE OF INthen 29 inches less front on the alley than TEREST IN FUND. on Main street. When appellants complain- Ky. St. 1915, table 4, p. 2466, showing the ed, the parties entered into a written agree-volved is subject thereto, that is, prior to allot

value of a widow's dower where the fund inment in which it was recited that the line ment of dower, is not applicable for determining had not been definitely established, and that the cash value of her dower right in a sum Ried might proceed to erect the partition awarded for condemnation of part of the land fence as begun, that is, so as to inclose a tate in such fund, and table 3, page 2465, shows

allotted to her as dower, but she has a life esrectangle fronting 20 feet on the street and the present cash value of a life right in the inalley, and Ried agreed to remove the fence come of a fund. if it should later be established that he had

[Ed. Note. For other cases, see Eminent Doinclosed more of the lot than he was enti- main, Cent. Dig. $ 427; Dec. Dig. Om 157.] tled to. Ried died in about 11 months, and

Appeal from Circuit Court, Union County. while he lived no steps ,were taken to es- Proceeding between Mary E. Dyer and tablish the line. The Ried lot descended to Ben W. Dyer and others for division of a the appellees by inheritance. In December, sum awarded in condemnation. From the 1910, appellants brought this action to es-judgment said Mary E. Dyer appeals. Retablish a division line and have it so drawn versed, with directions. as to apportion between them the shortage

P. H. Winston, of Sturgis, and Allen & on the alley in the proportion which 18 feet Allen, of Morganfield, for appellant. Morton and 5 inches bears to 20 feet. It is alleged & Morton, of Morganfield, for appellee. that the parties were laboring under a mutual mistake when they undertook to convey

HANNAH, J. John M. Dyer died intesto each other the lots having a like frontage tate, domiciled in Union county, the owner of on the street and alley. The court found several hundred acres of land therein, and from the proof that at the time the deeds survived by a widow and a number of chilof partition were made the combined front- dren. A portion of these lands was allotted age of the two lots was 38 feet and 5 inches to the widow as her dower. This dower alon both the street and alley, but that the lotment comprised 256 acres. On April 7, deed to Piersall, made by the Stubblefield 1913, the West Kentucky Coal Company inheirs, in which the appellants joined, 28 stituted a proceeding in the Union county days afterwards, conveyed a part of or encourt against Mrs. Dyer and her children croached upon the lot of appellants to the and the children of John M. Dyer by a forextent of 29 inches, the exact shortage as mer marriage, to condemn 1.51 acres of this ascertained by survey.

256-acre dower tract, for railroad purposes. We think this finding of the court is sup-Such proceedings were had in the Union counported by the evidence, and we also concur ty court and in the Union circuit court as in the opinion that, if the appellants permit- resulted in a recovery of damages in the sum ted Piersall to encroach upon the rear of of $4,034.13 net to the widow and heirs. See their lot to the extent of 29 inches, in order West Kentucky Coal Co. v. Dyer, 161 Ky. 407, that he might get the full width which he 170 S. W. 967. The parties to this appeal purchased from the Stubblefield heirs, then then agreed that the widow should take abthe appellees, who were in no wise connect-solutely and in fee simple the cash value of ed with the Stubblefield transaction, should her dower right in the sum awarded to them not be required to make up any part of that as damages, it being stipulated that she was loss. The tentative agreement made Janu- 65 years of age and in reasonably good ary 18, 1909, between the parties, with ref- health and strength and having the ordinary erence to the division line, was not a waiver Jexpectation of life for one of her age. Upon this agreement the lower court adjudged to service of the summons, when it should not be her 15.3 per cent. of the recovery, and from before the tenth day, does not make it void, so that judgment she appeals.

as to authorize the enjoining of its collection,

but is merely a clerical misprision, to be corThe lower court in fixing the amount due rected by a motion seasonably made. the widow out of said fund seemingly used [Ed. Note.-For other cases, see_Courts, Cent. table 4 found on page 2466 of Kentucky Stat- Dig. $8 409, 412, 413, 429, 458; Dec. Dig. Om utes, 1915 Edition, and approved in O'Donnell

189.] v. O'Donnell, 3 Bush, 216, and Alexander v. 3. JUDGMENT 416 — INJUNCTION - JUDG

MENT ON NOTE-WRITTEN ASSIGNMENT OF Bradley, 3 Bush, 667. This table shows the

NOTE. value of a widow's dower where the sum or

That a note was not assigned in writing by fund involved is subject thereto, that is, the payee does not render void the default judgprior to any allotment of dower. Such is ment obtained thereon by another, so as to aunot the present case. In this case, dower thorize enjoining its collection. had been previously allotted appellant, and Cent. Dig. $$ 784, 786-788; Dec. Dig. Omw416.)

[Ed. Note. For other cases, see Judgment, the fund in hand represents the diminution in value of the dower allotment, that is to

Appeal from Circuit Court, Muhlenberg say, the whole of the 256 acres of land allot-County. ted to her as dower, and in which she has a

Action by W. J. Ross against Alaska Ross life estate, has diminished in value to the and others. Petition dismissed, and plaintiff extent of $4,034.13. As she was entitled to appeals. Affirmed. the use of the 256 acres of land during life, Doyle Willis, of Greenville, for appellant. in the condition in which it was at the time Taylor, Eaves & Sparks, of Greenville, for of the allotment, she is entitled to the use appellees. during life of the fund which represents its diminution in value; or, as the parties have CARROLL, J. The appellant, as plaintiff, in this case agreed, to the present cash value brought this suit to enjoin the collection of of the use of that fund during life. The rule an execution issued against him in favor of is that the owner of a life estate in land con- the appellee Alaska Ross. The circuit court demned for a railroad right of way is en- dismissed the petition, and he appeals. titled to a life estate in the money received

There is no dispute as to the facts. It apas damages in the condemnation proceedings. pears that the appellant executed a note K. C., S. & M. Ry. Co. v. Weaver, 86 Mo. for $55 to one Rane Jones. This note came 473; Miller v. Asheville, 112 N. C. 769, 16 into the possession of one Alexander, the recS. E. 765; In re Camp, 126 N. Y. 377, 27 ord not showing how, as it was not indorsed N. E. 799; Diehl v. Cotts, 48 W. Va. 255, 37 by or assigned to Alexander in writing by S. E. 546; Lewis on Eminent Domain, §

Jones. Alexander, by indorsement on the 717.

back of the note, transferred it to Alaska In ascertaining the present cash value of Ross, who brought suit on it in the South Mrs. Dyer's life estate in the $4,034.13, the Carrollton police court.

Carrollton police court. No petition was fillower court should have used table 3, shown ed, the note only being filed with the police on page 2465, Kentucky Statutes, 1915 Edition, which table shows the present cash judge, who issued summons against the apvalue of a life right in the income of a fund. pellant, which summons was executed on

December 28, 1887. Mrs. Dyer's age being 65, and her physical judgment was rendered by default, and on

On January 6, 1888, condition being normal, she would be entitled this judgment from time to time executions to 45.1 per cent. of the fund.

were issued and returned “No property The judgment is therefore reversed, with directions to enter a judgment conforming to found,” until finally one was issued, the col

lection of which is here sought to be enthis opinion.

joined.

[1] The appellant insists that the judgROSS v. ROSS et al.

ment in the police court was void, and there(Court of Appeals of Kentucky. Nov. 4, 1915.) fore the collection of the execution should

have been enjoined. If the judgment was 1. Courts Cum 189–POLICE COURT JUDGMENT void, the circuit court had jurisdiction in -ABSENCE OF WRITTEN PETITION.

While, under Civ. Code Prac. § 705, the this action to enjoin the collection of this proper practice in an action in a police court execution. If, however, the judgment was on a note of over $50 is to file a written peti- merely erroneous, and not void, the circuit tion, failure does not render the judgment void, so as to authorize enjoining its col- court did not have jurisdiction to enjoin its lection, but only erroneous; such court having collection. jurisdiction of the subject-matter and the par- Section 705 of the Civil Code provides ties.

that: [Ed. Note.- For other cases, see_Courts, Cent. Dig. $$ 409, 412, 413, 429, 453; Dec. Dig. Om fifty dollars, the pleadings in the action may be

“If the matter in controversy do not exceed 189.]

oral and without verification. But before the 2. COURTS Om 189 POLICE COURT JUDG- summons is issued the plaintiff shall file in the MENT-PREMATURE RENDITION.

court the account, or the written contract, or Rendering default judgment in a police a short written statement of the facts, on which court on a note of over $50, nine days after the action is founded.”

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