October 10, 2012

C. Pitman, et al., v. George Watkin's Adm'r., Laurel, 1878

Previously:

Click here for a list of my other Pulaski/Rockcastle/Laurel County KY articles

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C. Pitman, et al., v. George Watkin's Adm'r.

COURT OF APPEALS OF KENTUCKY

9 Ky. Op. 902; 1878 Ky. LEXIS 253

June 4, 1878, Decided

PRIOR HISTORY:   [**1]  APPEAL FROM LAUREL CIRCUIT COURT.

DISPOSITION: Demurrer sustained. Judgment affirmed.

COUNSEL: Pearl & Ewell, for appellants.

L. A. Byron, for appellee.

JUDGES: Judge Cofer.

OPINION BY: Cofer

OPINION
 [*903]  Opinion by Judge Cofer:

The appeal bond sued on was executed to the appellee as administrator of George Watkins, and having recognized the appellee as administrator and executed a bond to him as such, the appellants are estopped to question his fiduciary character; and it was not necessary to set out in the petition the facts showing his due appointment and qualification.

The petition set forth the bond and the breach and was sufficient to entitle the appellee to a judgment.
Counsel are mistaken in supposing that a return of "no property found" against the principal is necessary to entitle the appellee to maintain an action on the appeal bond. The covenant in the bond is that Pitman will satisfy and perform the judgment rendered on the appeal. Judgment was rendered in favor of the appellee and Pitman failed to discharge it at once, and in consequence of such failure the covenant in the bond was broken and a right of action accrued to the covenant.

The demurrer to the answer was properly sustained.  [**2]  Judgment affirmed.

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