Commonwealth v. Burnett

• Decision Date: 17 June 1938
• Parties: COMMONWEALTH v. BURNETT et al.
• Court: Kentucky Court of Appeals

118 S.W.2d 558

274 Ky. 231

COMMONWEALTH v. BURNETT et al.

Court of Appeals of Kentucky

June 17, 1938

Appeal from Circuit Court, McCreary County.

Suit by Melton Burnett and others to enjoin the collection of a replevin bond which plaintiff had executed before a magistrate by whom the named plaintiff had been fined for operating a motor vehicle while intoxicated, wherein the Commonwealth intervened as the real party in interest. Judgment sustaining a demurrer to the answer, and the Commonwealth appeals.

Reversed.

J. B Johnson, Commonwealth's Atty., of Williamsburg, and James A. Inman, of Whitley City, for the Commonwealth.

G. W Hatfield, of Whitley City, for appellees.

STITES Chief Justice.

This is an appeal from a judgment of the McCreary Circuit Court. Appellees, who were the plaintiffs below, filed a petition in the Quarterly Court of McCreary County, alleging in substance that the appellee Melton Burnett was arrested in McCreary County on a charge of operating a motor vehicle while intoxicated. He was taken before Squire J. O. McDowell pleaded guilty, and was fined $100 and costs. After the judgment was entered, Burnett, with other appellees as his sureties, executed a replevin bond before Squire McDowell, which was not paid at its maturity. Thereupon an execution was issued on the bond and placed in the hands of the sheriff for collection. This suit was instituted to enjoin the collection of the bond and the execution thereon because of the alleged lack of jurisdiction of the magistrate to try Burnett. The answer does not dispute the material facts as alleged in the petition, but presents simply the question of law as to whether or not the magistrate had jurisdiction, under Section 2739g-34 of the Kentucky Statutes. The Quarterly Court granted the injunction prayed, and, upon appeal to the Circuit Court, the Commonwealth intervened as the real party in interest and adopted the answer theretofore filed. The Circuit Court sustained a demurrer to the answer, and the Commonwealth has appealed.

At the outset, we are confronted by a motion to dismiss the appeal on the ground that this Court is without jurisdiction. It has been repeatedly held that an appeal lies from a judgment perpetuating an injunction to restrain the collection of money, where that is the sole relief asked, although the amount involved is less than $200. Burnside Supply Company v. Burnside Graded Common School, 260 Ky. 482, 86 S.W.2d 160; Day v. Bauer, 215 Ky. 335, 285 S.W. 207; Kentucky River Hardwood Company v. Noble, 168 Ky. 773, 182 S.W. 941; Staples v. Shiver, Ky., 122 S.W. 826; Shackelford v. Phillips, 112 Ky. 563, 66 S.W. 419, 24 Ky.Law Rep. 154, rehearing denied 112 Ky. 563, 68 S.W. 441, 24 Ky. Law Rep. 154.

The only remaining question necessary for our consideration is whether or not the magistrate had jurisdiction to try Burnett. Section 2739g-34a provides as follows:

"That it shall be unlawful for any person to operate a motor vehicle upon any of the public highways of this Commonwealth, while in an intoxicated condition and for each violation of the above provision the person so offending shall be fined, for the first offense, not less than one hundred nor more than five hundred dollars and his license to operate a motor vehicle revoked for the period of one year, and for the second and each subsequent offense he shall be fined not less than $100 nor more than $500, and confined in the county jail not less than thirty days nor more than six months."

By section 1093 of the Kentucky Statutes, it is provided that Magistrates "have jurisdiction exclusive of circuit courts in all penal and misdemeanor cases, the punishment of which is limited to a fine of not exceeding twenty dollars and jurisdiction concurrent with circuit courts of all penal cases and misdemeanor cases, the punishment of which is limited to a fine of not exceeding five hundred dollars, or imprisonment not exceeding twelve months, or both ***." It is insisted for the appellees that justices of the peace have no jurisdiction to try cases under Section 2739g-34a for the reason that the punishment to be inflicted is not limited to a $500 fine, but involves likewise an additional punishment in the revocation of the defendant's license to operate a motor vehicle for the period of one year. It is argued that the additional penalty thus provided in the statute deprives inferior courts...