Stix v. Eversole's Administrator
Court of Appeals of Kentucky
Case 59 — ACTION ON ACCOIJNT APPEAL PROM PERRY CIRCUIT COURT. 1. The appellees laid no foundation for the motion for a rule to dismiss. 2. The court erred in making the rule absolute and dismissing the petition on the record alone. Citations; Thomas v. Thomas, 15 B. M., 184; Nuttle v. Brannin, 5 Bush, 11. 1. The court properly dismissed the petition for lack of the affidavit and demand required by the statute. Ky.
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Case 59 — ACTION ON ACCOIJNT APPEAL PROM PERRY CIRCUIT COURT. 1. The appellees laid no foundation for the motion for a rule to dismiss. 2. The court erred in making the rule absolute and dismissing the petition on the record alone. Citations; Thomas v. Thomas, 15 B. M., 184; Nuttle v. Brannin, 5 Bush, 11. 1. The court properly dismissed the petition for lack of the affidavit and demand required by the statute. Ky. Stats., secs. 3870-1; Leach v. Kendall’s Admr., 13 Bush, 424; Trabue’s Exrs. v. Harris, 1 Met., 597. The statement in Hogg’s deposition that the account was properly proven was…
1Opinion of the CourtChief Justice Hazelrigg
A personal representative may waive the demand required by section 3872, Kentucky Statutes, of claims against the decedent’s estate (Thomas v. Thomas, 15 B. Mon., 184; Howard v. Leavell, 10 Bush, 481); and if he files a general demurrer to the petition it is then too late to object do the further prosecution of the action against him for want of such demand and proof (Usher v. Flood, 12 Ky. Law Rep., 721, [17 S. W., 132]). The trial court in the appeal before us dismissed the petition of the appellants upon the belief that there was not sufficient proof of a demand for the payment of the…
2Cases cited1 opinion
- Howard's adm'r v. Leavell's adm'xCourt of Appeals of Kentucky · 1874
3Cited by4 opinions
- Johnson's Administrator v. PiggCourt of Appeals of Kentucky (pre-1976) · 1932
- Bailey's Administrator v. Hampton Grocery Co.Court of Appeals of Kentucky · 1920
- Bootes v. Gwinner's AdministratorCourt of Appeals of Kentucky (pre-1976) · 1933
- Flimin's Administratrix v. FliminCourt of Appeals of Kentucky (pre-1976) · 1934