Commonwealth v. Miniard

• Decision Date: 04 December 1936
• Citation: 99 S.W.2d 166,266 Ky. 405
• Parties: COMMONWEALTH v. MINIARD.
• Court: Kentucky Court of Appeals

99 S.W.2d 166

266 Ky. 405

COMMONWEALTH v. MINIARD.

Court of Appeals of Kentucky

December 4, 1936

Appeal from Circuit Court, Perry County.

Suit for injunction by Ralph Miniard against the Commonwealth of Kentucky to enjoin the levy and enforcement of execution of a judgment against the plaintiff. From a judgment awarding a permanent injunction, the Commonwealth appeals.

Reversed with directions to set judgment aside and to dismiss petition.

G Murray Smith, Commonwealth Atty., of Richmond, and B. M Vincent, Atty. Gen., for the Commonwealth.

Faulkner & Faulkner, of Hazard, for appellee.

THOMAS Justice.

On the dates herein one Ed Profitt was a justice of the peace in Powell county. On the 15th of April, 1934, upon the affidavit of C.C. Jackson, he issued a warrant of arrest for one R.C Harding accusing him of unlawfully, negligently, carelessly, and recklessly operating a motor vehicle upon a public highway of the county; but the warrant also recited that as a consequence thereof a collision was produced with a car operated by the affiant, Jackson. An indorsement on the warrant authorized the arresting officer to take bail bond of the defendant named therein in the sum of $500. The surety in the bond was the appellee here, Ralph Miniard, who resided in Perry county, wherein defendant in the warrant was arrested, and the arresting officer (sheriff of Perry county), pursuant to the indorsement on the warrant, approved a duly executed bail bond signed by the accused Harding and appellee Miniard, and which was done on the 12th day of May, 1934. Due return of the warrant as executed, together with the bond, was made by the sheriff to the justice of the peace who issued it. The trial of defendant was, according to the testimony of the justice, postponed at the request of the accused Harding, and which was done in the presence of his surety in the bail bond. The postponement was until May 29 of that year, and on that day the defendant, though called, failed to appear or answer, and the magistrate made this order or entry: "Con. to May 29, '34, failure to answer on May 29, '34 bond forfeited." He then caused the warrant, the bond, the order of forfeiture, and all of the papers in the cause to be returned to the Powell circuit court, which no doubt was an intended compliance with the directions contained in section 58 of the Criminal Code of Practice.

Summons was issued against the surety to show cause why judgment should not be rendered against him because of the violations of the terms of the bail bond, and the order forfeiting it by the court in which the prosecution was pending, and it was duly served upon the defendant therein, who is the plaintiff herein. He ignored the summons and failed to appear at any time in the Powell circuit court, which (upon the calling of the forfeiture proceedings therein, and without response by the summoned surety) rendered judgment against him by default for the amount of the bond, $500. In due time execution issued upon that judgment directed to the sheriff of Perry county where appelle resided and where his property was located. Before the sheriff made levy thereunder, appellee filed in the Perry circuit court this equity action against him seeking to enjoin the levy and enforcement of the execution upon the ground, as he alleged in his petition, that the Powell circuit court judgment on the forfeiture bond against him was void for want of jurisdiction of the court over the subject-matter. The Commonwealth, on relation of the Commonwealth's attorney for the circuit court judicial district in which Powell county is located, intervened and set up in his intervening petition all of the facts to which we have referred, but with more detail. He also filed copies of the warrant, the bond, the return thereon, the order of forfeiture, and other steps taken down to and including the judgment rendered by the Perry circuit court. Subsequent pleadings were filed by appellee (to whom we shall hereafter refer as plaintiff), and some immaterial issues of fact were made upon which the court (Perry circuit) heard evidence, and upon submission it adjudged that the judgment of the Powell circuit court upon which the execution sought to be enjoined was issued "is void and of no effect," and that the defendant in the action (sheriff of Perry county) "be and he is hereby permanently enjoined from taking any other or further action or proceeding upon said execution"--to all of which the sheriff and the commonwealth by its relator objected and excepted and prayed an appeal to this court.

This proceeding is an undoubted effort to collaterally attack in the Perry circuit court a judgment rendered by the Powell circuit court, but, under...