Affirming. Hannah M. Zimlich appeals from a judgment of the Jefferson circuit court, dismissing her petition for the cancellation or holding for naught a note dated March 22, 1933, payable to Henry Gettler, deceased, for $2,120. Hannah M. Zimlich was a daughter of Henry Gettler, deceased, and the widow of Leo J. Zimlich, deceased. This note was a renewal of one executed in March, 1930, for $2,000. *Page 633 The issue is, Was the original note for $2,000 executed by her together with her husband,...
Reversing. Josephine Young brought this action against Owen McCraw for a declaration of rights under an instrument purporting to be a contract of sale. McCraw defended on the ground that the instrument was a mortgage given to secure such sums as he might advance, and that the sums advanced amounted to a total of $10,337.93. On final hearing the chancellor adjudged the instrument a mortgage, and gave McCraw an equitable lien on the property for the sum of $5,500, inferior only to a $14,000...
Affirming. In June, 1937, the grand jury of Perry county returned a true bill charging Kelly and Joe Young, brothers, with the murder of Ted Cornett. Severance was granted, and upon election appellant was tried first. He was found guilty, and his punishment fixed at twenty-one years in the penitentiary. He appeals. It is contended that the court erred in refusing a continuance, because prior to the trial accused was so ill that he could not prepare his defense, and (2) that witnesses for proper...
Affirming. Upon a directed verdict, judgment was rendered for the defendant, the Farmers and Depositors Bank, in this suit by the administrator of the estate of Edward A. Young to recover damages for his death, alleged to have been caused by the bank's negligence. On May 21, 1935, Butler, the proprietor of a plumbing establishment, and a representative of the gas company, *Page 846 went to the bank in St. Matthews to investigate what was thought to be a gas leak in the basement. At that time...
Affirming. The members of the Old Yellow Creek Baptist Church have failed to heed the Biblical admonition to church members, "Be at peace among yourselves," and have appealed to the courts to settle a controversy growing out of an effort on the part of one faction of the congregation to move the church building to a new location. The building was erected more than thirty years ago on a lot near the city of Middlesboro, Ky., and in the opinion of many of the members of the congregation it has...
Affirming. The administrator of the estate of Joe Yeary brought this suit against the appellee to recover damages for his death in its mine on February 7, 1934. He appeals from the judgment rendered on a directed verdict for the defendant. Inasmuch as the defendant had not elected to operate under the provisions of the Workmen's Compensation Act (Ky. Stats. sec. 4880 et seq.), the sole issues were whether it was negligent and, if so, whether its negligence was the proximate cause of its...
Affirming. This is an action to quiet title brought by the appellant, George A. Wynn, against the appellees, T.M. Gover and Walter Stigall. The appellant brought this suit in equity in the Pulaski circuit court against the said named defendants, alleging in his petition that be was the owner and in the possession of a certain named tract of land therein specifically described in its boundary by the metes and bounds set out. Further, he alleged that the defendants, T.M. Gover and wife, Nellie...
Affirming. This is an appeal from a judgment of the Fayette circuit court dismissing the petition of W. T. Sistrunk Co., in an action in which the plaintiff sought to recover the sum of $755.59 from the estate of Frank Navarra, an incompetent. Frank Navarra owned a lot and building in Lexington, Ky., which was encumbered by a mortgage held by the Lincoln Bank Trust Company of Louisville. For many years prior to December 1, 1927, Navarra had conducted a retail fruit and grocery business in the...
Reversing. David T. Wright has appealed from a judgment of the Marion circuit court sentencing him to life imprisonment for the murder of R.C. Henderson. The grounds urged for a reversal of the judgment are: (1) The evidence is insufficient to sustain a verdict of murder; (2) improper argument of counsel for the commonwealth; and (3) the court erred in failing to instruct the jury on the whole law of the case. The facts of the case are, in substance, as follows: Appellant, who was twenty years...
Affirming. The appellant, Charles Wright, was upon trial, on a charge of attempted rape, an offense denounced by *Page 443 section 1153, Kentucky Statutes, convicted and his punishment fixed at five years confinement in the penitentiary. Complaining of this judgment, appellant appeals, seeking its reversal upon the grounds: (1) that the verdict is contrary to the law and evidence; (2) that the court failed to correctly instruct the jury; and (3) that it erred in admitting incompetent evidence...
Affirming. This is a suit for specific performance, and the defendants have appealed from a judgment granting the relief prayed for in the plaintiffs' petition. George Woolum conveyed to his wife, Josephine Woolum, by a general warranty deed, 130 acres of land on June 4, 1914. He died about four years after the deed was executed. George Woolum and Josephine Woolum took into their home John Woolum when he was a small boy, and be lived with them until his marriage. During all of this time he was...
Affirming. On April 4, 1935, appellant filed a petition seeking divorce and alimony. The parties were married in February, 1920, and lived contentedly together until some time prior to March 28, 1935, when the eternal triangle interrupted. At the time of their marriage appellant had no property; appellee had saved from *Page 788 his labors as a farm tenant a nice sum. By their joint efforts, up to the time of the rift in their domestic life, they had accumulated sufficient funds for the...
Affirming. Proceeding on the theory that section 2380-39, Kentucky Statutes 1930, 1936, is invalid, the Board of Drainage Commissioners of Webster County made an assessment against the land of G.L. Withers for maintenance purposes equal to 10 per cent. of the original assessment for the construction of the ditch. The action of the board was sustained by the Webster circuit court, and Withers appeals. For several years prior to 1928, the Board of Drainage Commissioners of each county was...
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 3 Reversing. This is an appeal from a judgment of the Franklin circuit court dismissing appellants' petition as amended on the ground of its alleged failure to state facts sufficient to constitute a cause of action. The suit was filed for the purpose of enjoining the Governor and other defendants from certifying to the Secretary of State of the United States,...
Affirming. On January 22, 1929, the grand jury of Magoffin county returned a true bill charging that appellant had committed the crime of murder by willfully and feloniously shooting, wounding, and killing one Kelly Allen. For reasons, which will later appear, appellant was not brought to trial on the indictment until April *Page 306 27, 1936, at which time, after a hearing of testimony and instructions by the court not subjected to criticism, the jury returned a verdict finding appellant...
Affirming. The appellant was indicted and tried in the Magoffin circuit court upon the charge of willfully murdering one Irvin Prater. He was found guilty of voluntary manslaughter and his punishment fixed at imprisonment for five years in the penitentiary. He appeals. Appellant filed motion for a new trial, supported by the following grounds: (a) The verdict is not supported by the law or the evidence, and is flagrantly against the evidence; (b) the court erred to the prejudice of appellant's...
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 833 Affirming. In April, 1906, Jennie Winston instituted an action for divorce against J.S. Winston in the Union circuit court on grounds which it is unnecessary to enumerate. She alleged that he was wasting his estate and that some months before the filing of the action he had sold a farm for $20,000 and received a large portion of the purchase price in...
Affirming. This is an appeal from a judgment of the Rockcastle circuit court sitting in equity. On October 2, 1936, a petition was filed with the clerk of the Rockcastle county court, signed by more than 25 per cent. of the legally qualified voters of the county, requesting that the county judge call a local option election. On the 19th of October, the first day of the next regular term of the county court, an order was entered pursuant to the petition, calling a local option election to be...
Affirming. T.E. Wilson, a resident of Nelson county, died testate July 3, 1935. His will and a codicil which had been duly admitted to probate in the county of his residence, omitting certain formal parts, read: "First there is a marriage contract between my wife and myself, (recorded at Springfield, Ky.) and I will that my estate be settled in accordance with said contract. "Second. I have paid a debt for J.J. Sharp (recorded at Corydon, Indiana) I will that my *Page 246 daughter be charged...
Affirming. This is an appeal from a judgment of the Pulaski circuit court under which the chancellor refused to require the appellee, J.T. Wilson, to make further contributions to the support of his infant daughter and, in the same judgment, refused to take the daughter away from the custody of the appellant, Eva Wilson, and award such custody to the appellee. Mrs. Wilson has appealed from that portion of the judgment refusing to require the further payment of maintenance, and Mr. Wilson has...
