Calhoun v. Lenahan
| Decision Date | 06 December 1935 |
| Citation | 261 Ky. 601,88 S.W.2d 288 |
| Parties | CALHOUN et al. v. LENAHAN et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.
Suit by Joseph E. Lenahan and others against Joseph Calhoun and others. Judgment for plaintiffs, and defendants appeal.
Reversed and remanded, with directions.
Thomas W. Beale, John M. Marshall, and Peter, Heyburn, Marshall & Wyatt, all of Louisville, for appellants.
Hagan & Hagan and A. M. Marret, all of Louisville, for appellees.
Under the provisions of sections 3713 to and including 3716 of the 1930 Edition of Carroll's Kentucky Statutes, a town or city of the sixth class may be established by pursuing the course outlined in sections 3714 and 3715. The procedure for that purpose is the filing of a petition by two-thirds of the voters in the territory in the circuit court of the county of its proposed location, preceded by the giving of prescribed notices, etc. The petition also is required to state that the territory proposed to be incorporated shall have at least 125 inhabitants and the boundary thereof shall not exceed one-fourth of a mile in length in each direction and in the form of a square. After the prescribed notice of the filing of a petition, it becomes the duty of the judge of the circuit court in which it is filed to enter the requisite judgment to effect the incorporation, unless the statutory prescribed defense thereto is made by any inhabitant of the proposed town. The only defense appears to be a failure to take any of the requisite prior steps by the petitioners, or some defect, contrary to the provisions of the statute, in the petition. When defense is made, the court shall hear it and if it is satisfied that "the population within the prescribed boundary is sufficient, and the proper notice or publication has been made or given it shall have no discretion as to the establishment of the town."
Appellants are residents of a suburban territory to the city of Louisville, formerly occupied by a United States Military Training Camp, known as "Camp Zachary Taylor," which is outside of but near to the southern corporate limits of the city of Louisville. The requisite number of residents and citizens in a described portion of that territory attempted to incorporate it under the sections of the statutes referred to, to be designated as the town or city of "Poplar Heights." A number of other inhabitants of the proposed incorporated territory, representing the group of plaintiffs in the instant action, appeared in the circuit court to make defense, and perhaps did enter some motion; but there was no trial of the merits, since the petitioners concluded, and perhaps correctly so, that they had not strictly followed the requirements of the statute. Another effort to incorporate the town under the same statutes was abortive for similar reasons, there being no trial of the merits of the case in that second procedure which covered practically the same territory. Because it possessed some of the same defects (chiefly improper boundaries) as did the first effort at incorporation, it was dismissed without prejudice.
A third effort was successful by default (i. e., no protesting inhabitants appeared and made defense) and the town was incorporated with the appointment of city officials as is also prescribed for in the same statutes. Thereafter its council, pursuant to statutory authority, passed an ordinance annexing some adjacent territory, following which a majority of the voters in the enlarged municipality filed a petition in the Jefferson circuit court, under the provisions of 3662a-1, to dissolve the municipality as so enlarged, and in which they were successful. The group of citizens and inhabitants desiring the establishment of a sixth-class town, some time after the dissolution, were engaging in efforts to prepare and file another petition under the same sections of the statutes to incorporate the territory therein proposed into a sixth-class municipality when the opposition group, composed of plaintiffs herein, filed this independent equity action against them (defendants herein) to enjoin them from doing so because they were engaging in what plaintiffs alleged was "vexatious litigation."
The answer of defendants denied the only equity jurisdiction invoked and asserted their good faith in all of the steps that had been taken to bring about the establishment of the sixth-class town, which they thought and averred would redound to the benefit of its citizens. Following pleadings made the issues, and after evidence heard the court sustained in part the prayer of the petition and enjoined defendants from not only filing the contemplated procedure, the preparation of which was already partially made, but likewise enjoined them until June 1, 1936, "from instituting another suit or suits, and from taking any further steps for the incorporation of a town of the sixth class embracing the following territory," etc., and from that judgment defendants prosecute this appeal.
A plat of the camp Zachary Taylor suburb was filed in the cause, and it shows the proposed boundaries of each of the three actually filed...
To continue reading
Request your trial
-
Flint v. Coach House, Inc., 2015-CA-000827-MR
...may enter an injunction restricting a pro se litigant from filing abusive, frivolous, or repetitious actions. See Calhoun v. Lenahan, 261 Ky. 601, 88 S.W.2d 288 (1935); Cardwell v. Commonwealth, 354 S.W.3d 582 (Ky. App. 2011); 42 Am. Jur. 2d Injunctions § 181 (2d ed. 2014). "[E]very paper f......
- Calhoun v. Lenahan
-
Flint v. Coach House, Inc., 2012-CA-001371-MR
...court may enter an injunction restricting a pro se plaintiff from filing abusive, frivolous, or repetitious actions. Calhoun v. Lenahan, 261 Ky. 601, 88 S.W.2d 288 (1935); Cardwell v. Commonwealth, 354 S.W.3d 582 (Ky. App. 2011); see also 42 Am. Jur. 2d Injunctions § 181 (2ed. 2014). The po......