Bramblett v. McVey
| Decision Date | 27 January 1891 |
| Citation | 91 Ky. 151,15 S.W. 49 |
| Parties | BRAMBLETT et al. v. MCVEY et al. |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Grant county.
J. P Norvell and W. W. Dickerson, for appellants.
R. W Masterson and M. D. Gray, for appellees.
Appellants John W. Bramblett and G. W. Bramblett, state in their petition they were indicted in the Grant circuit court charged with the offense of trespass in taking and carrying away a horse in possession and property of I. Marksberry, and upon the indictment a summons was issued directed to the sheriff of Nicholas county, who indorsed thereon he had executed it upon both defendants, when in fact he never did in any manner execute it upon John W. Bramblett; that at a subsequent term of that court, though neither of them was present at the time, a trial of the charge took place, and without any evidence being heard to sustain it, there was a verdict of the jury, followed by judgment of court against both of them for a fine of $500; that to satisfy that judgment an execution of capias pro fine was issued against appellant John W. Bramblett, directed to the sheriff of Nicholas county, who was about to seize his body, and would have done so if he had not executed a replevin bond for amount of the judgment, which was done, G. W. Bramblett being his surety; that afterwards an execution was issued on the replevin bond, and, to restrain collection of it, an injunction was prayed for. It was further stated in the petition that he (John W. Bramblett) was not guilty of the offense for which he was indicted, and would, if an opportunity had been afforded, have so pleaded, and is now ready to do so. In an amended petition, tendered after a general demurrer had been sustained to the original, they state that the return of the summons mentioned is untrue, and was made by mistake of the sheriff, who supposed he had executed it on appellant John W. Bramblett, when in fact he had not executed it on, nor seen him. The question of law presented on the appeal is whether the facts stated in the petition and amended petition, taken as true, are sufficient to authorize the relief prayed for, which is to perpetually enjoin collection of the replevin bond. The parties made defendants to the action by name are the clerk of Grant circuit court, the county attorney of that county, the common wealth's attorney for the district in which that county is situated, and the sheriff of Nicholas county. And it is contended in argument that the action cannot be maintained against them, because the judgment upon which the original execution issued is not in favor of them. Section 23, Civil Code, provides that "any person may be made a defendant who claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination of the question involved in an action." If some one or all of the parties named could not be made defendants to an action like this, the plaintiff, however just his cause of complaint, would be without remedy, for the commonwealth cannot be used. ...
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