Curry v. Stewart

• Decision Date: 30 January 1871
• Parties: Curry v. Stewart.
• Court: Kentucky Court of Appeals

Page 560

71 Ky. 560

Curry v. Stewart.

Court of Appeals of Kentucky.

January 30, 1871.

APPEAL FROM ROWAN CIRCUIT COURT.

E. C. PHISTER, For Appellant.

J. M. NESBITT, THOS. F. HARGIS, W. H. CORD, For Appellee.

JUDGE HARDIN DELIVERED THE OPINION OF THE COURT.

The appellant, James Curry, who in 1870 was elected, commissioned, and qualified as judge of the Rowan County Court, brought this action in May, 1871, against the appellee, James Stewart, alleging, in substance and effect, that on the 1st day of March, 1871, and afterward the defendant had usurped his said office, and taken possession of part of the books and public records belonging thereto, and unlawfully performed the duties of the office; and had collected and was then collecting and appropriating to his own use the salary, fees, and perquisites of the office, without the plaintiff's consent; wherefore he prayed that Stewart be declared a usurper, and ordered and compelled to restore to the plaintiff the books and records pertaining to the office, and for a judgment against him for damages.

In the defense it was substantially alleged and proved that after the plaintiff became county judge, as aforesaid, he removed with his family into Bath County, a distance of about two miles from his former residence; and the clerk of the Rowan County Court, considering the office of judge to have thus become vacant, issued a writ for the purpose of electing a person to fill the office, and the appellee was thereunder elected judge, and was commissioned and qualified as the successor in office of the appellant.

The issue thus briefly indicated was tried by a jury, and a verdict and judgment were rendered for the defendant, and this appeal seeks a reversal of that judgment.

Waiving the consideration of some preliminary questions relating to the selection of a special judge to try the case, and the trial by a jury instead of the court, in which we perceive no available error to the appellant's prejudice, we will proceed to dispose of the only inquiry presented which we deem essential.

While the fact was clearly established that the appellant did, for a particular purpose, leave his farm and part of his personal property in Rowan County in the possession of a tenant, and go with his family and remain for several months in Bath County, where, in compliance with certain contracts, he was operating a portable saw-mill, occupying with his family in the mean time a house or shanty constructed with lumber from...