Rogers v. Mitchell's
Court of Appeals of Kentucky
CASE 5 — PETITION EQUITY APPEAL FROM MONTGOMERY CIRCUIT COURT. This suit was brought by the appellant, upon a bond executed Iby Mitchell, as his guardian, against Apperson, the executor of Mitchell, and Apperson and Hathaway, sureties in the guardian’s bond, to recover estate of appellant, alleged to have come to the hands of the guardian.
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CASE 5 — PETITION EQUITY APPEAL FROM MONTGOMERY CIRCUIT COURT. This suit was brought by the appellant, upon a bond executed Iby Mitchell, as his guardian, against Apperson, the executor of Mitchell, and Apperson and Hathaway, sureties in the guardian’s bond, to recover estate of appellant, alleged to have come to the hands of the guardian. Hathaway answered, and afterwards, upon motion of the defendants, a rule was awarded them against the plaintiff to show cause why the action should not be dismissed for want of the affidavit required by the 35th ■and 36ill sections of article 2, chapter 37,…
1Opinion of the Court
JUDGE SIMPSON
delivered the opinion oi? the court1:
The 473d section of the Code of Practice declares, that no suit shall be brought against a personal representative until after a demand is made of him, accompanied with the affidavit required by the provisions of the 35th and 3Qth sections of article 2, chapter 37, of the Revised Statutes.
■ In the case of Thomas’ executor vs. Thomas, (15 Ben. Monroe, 178,) it was decided that it was unnecessary to state in the petition that such a demand had been made of the defendant, accompanied with the proper affidavit, before the commence-taent of the…
2Cited by8 opinions
- McManus v. ThingMassachusetts Supreme Judicial Court · 1911
- Dean v. RossMassachusetts Supreme Judicial Court · 1901
- Smith v. SmithCourt of Appeals of Kentucky (pre-1976) · 1943
- Harding v. BullardCourt of Appeals of Kentucky · 1916
- Moore v. EdwardsMassachusetts Supreme Judicial Court · 1896
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