Chenault v. Spencer

• Decision Date: 07 May 1902
• Parties: CHENAULT et al. v. SPENCER et al. [1]
• Court: Kentucky Court of Appeals

68 S.W. 128

CHENAULT et al. v. SPENCER et al. ^[1]

Court of Appeals of Kentucky.

May 7, 1902

Appeal from circuit court, Wolfe county.

"Not to be officially reported."

Action by E. C. Chenault and Joel Chenault against Isaiah Spencer and others for an injunction. Judgment for defendants, and plaintiffs appeal. Reversed.

J. K Roberts, W. S. Pryor, and J. B. White, for appellants.

BURNAM J.

Appellants instituted this action on the 22d of October, 1895, seeking to enjoin appellees from cutting and removing timber from a tract of about 400 acres of land in Wolfe county, Ky alleging title and possession in themselves. The averments of the petition were put in issue by the appellees, who, in addition to the traverse, alleged that they held legal title and were in actual possession of a boundary of land under patents from the commonwealth, a considerable part of which was embraced by the boundary claimed by appellants, and alleged that their title was older and better than that of appellants. The pleadings were made up by reply and rejoinder; and in August, 1898, the appellant Joel Chenault gave his deposition, and took the depositions of a number of other persons, for the purpose of sustaining his contention filing with the deposition exhibits evidencing a complete chain of title to the land in controversy. In January, 1899 the appellees, Spencer and Adams, gave their depositions, and also took the deposition of W. L. Bush, in which, in many important particulars, they contradict the statements made by appellant and the witnesses who testified for him. At the April term, 1900, the appellant Joel Chenualt filed his affidavit, in which he says that the regular judge of the court would not afford him or his wife a fair and impartial trial; that he had, in his hearing and that of numerous other persons, stated, in an excited manner, in the hotel at Compton, whilst engaged in a conversation with J. B. White, that affiant and wife had no right, legal or equitable, to the land in controversy; that this conversation occurred shortly after a decision by the court of appeals holding that affiant and wife were in the actual possession of a part of this land claimed by them in the suit of Chenault v. Quisenberry (Ky.) 43 S.W. 717; that the judge had refused to follow the decision of the appellate court in that case. The circuit judge refused to vacate the bench, and ordered that the case be submitted for...