Hanna, &C. v. McKenzie

• Decision Date: 18 April 1845
• Citation: Hanna, &C. v. McKenzie, 44 Ky. 314 (Ky. Ct. App. 1845)
• Court: Kentucky Court of Appeals
• Parties: Hanna, &c. <I>vs</I> McKenzie.

Page 314

44 Ky. 314

Hanna, &c. vs McKenzie.

Court of Appeals of Kentucky.

April 18, 1845.

ERROR TO THE HICKMAN CIRCUIT.

JUDGE BRECK delivered the opinion of the Court.

THIS was an action of debt brought by McKenzie upon an injunction bond against Hanna, Irvin, and Ramy, now plaintiffs in error.

The defendants filed two pleas, to which the plaintiff demurred. The demurrers being sustained, judgment was rendered against the defendants for $563 88; for the reversal of which they prosecute this writ of error.

Whether the demurrers were properly sustained presents the main question for consideration.

The first plea is in substance, that before the execution of the bond sued on, Hanna and Irvin, two of the defendants, exhibited their bill in the Hickman Circuit Court, and obtained an order for an injunction, restraining further proceedings upon a judgment and execution thereon, which judgment had been obtained by the plaintiff against the said Hanna, &c., in and before the General Court of Kentucky, a tribunal of jurisdiction, separate and distinct from that of the Hickman Circuit Court, and that as a condition precedent to the emanation of said injunction, a bond with condition, prescribed in the order, was required to be executed, and that in compliance with said condition, and for no other or different object or consideration, was the writing sued on executed by the defendants; and they aver that the Hickman Circuit Court had no jurisdiction or authority to entertain the bill, grant the order for an injunction, or to require the execution of said bond, and that the entire proceedings were void.

The demurrer to the plea renders it necessary to look into the declaration, which it is contended, is insufficient.

Profert of a duly certified copy of the bond sued on, is made in the declaration, with an averment that the original is upon file amongst the records of the Hickman Circuit Court, in the case of Hanna, Irvin & Co. against McKenzie. The bond is in the penalty of $1,200, and the condition thereof set out in the declaration in haec verba, is substantially as follows:

That whereas the above bound Charles Hanna and Charles Irvin, hath obtained from Lewis Scarce and W. S. Jordan, two of the Commonwealth's Justices of the Peace for Hickman county, appointed by the County Court of said county to grant injunctions, &c., an injunction and restraining order enjoining and restraining said McKenzie from all further proceedings upon a judgment and execution thereon, in favor of said McKenzie and against said Hanna and Irvin, for the sum of $558 17, besides interest and costs, until the further order of this Court. Now if said Hanna & Irvin shall satisfy and pay the judgment aforesaid, and all such costs and damages as shall be awarded against them in case said injunction be dissolved, discharged, or dismissed, or otherwise set aside, then the above obligation to be void, otherwise to remain in full, &c.

The plaintiff then avers that at the April term of the Hickman Circuit Court, in the year 1840, upon the motion of the plaintiff, the said injunction was discharged in due form of law, by said Court, and that costs were awarded him against said Hanna & Irvin.

It is not recited in the bond in what Court the judgment enjoined was obtained, nor is it alledged in the declaration, and it is insisted that...