Evans v. Humphrey

CourtCourt of Appeals of Kentucky
Writing for the CourtFULTON, Justice.
Citation135 S.W.2d 915,281 Ky. 254
Decision Date12 January 1940
PartiesEVANS v. HUMPHREY, Judge.

135 S.W.2d 915

281 Ky. 254

EVANS
v.
HUMPHREY, Judge.

Court of Appeals of Kentucky

January 12, 1940


THOMAS, CAMMACK, and TILFORD, JJ., dissenting.

Original proceeding by E. Lewis Evans for a writ of prohibition against the Honorable Churchill Humphrey, Judge, Jefferson Circuit Court, Chancery Branch, First Division.

Writ ordered to issue in accordance with opinion.

James W. Stites, of Louisville, for petitioner.

Churchill Humphrey, of Louisville, for respondent.

Robert L. Sloss, of Louisville, amicus curiae.

FULTON, Justice.

The petition for a writ of prohibition filed by E. Lewis Evans against the respondent, Hon. Churchill Humphrey, Judge of the Jefferson Circuit Court, Chancery Branch, First Division, alleges that the petitioner is the duly elected and acting President-Secretary-Treasurer of the Tobacco Workers International Union and states the facts on which he relies for a writ of prohibition in substance as follows:

On July 15, 1939, an action was filed in the Jefferson Circuit Court by certain local unions of the Tobacco Workers International Union, on relation of certain members of the locals and by Edward H. Weyler, Secretary-Treasurer of the Kentucky State Federation of Labor against E. Lewis Evans, International President-Secretary-Treasurer of the Tobacco Workers International Union and the six vice-presidents comprising the International Executive Board, in which the plaintiff sought a mandatory injunction requiring the defendants to take the steps provided for by the constitution of the T. W. I. U. for calling and holding a convention. This action also sought the appointment of a receiver to take charge of the money, property, records and other affairs of the T. W. I. U. This case was tried before the respondent, Hon. Churchill Humphrey, Judge of the Jefferson Circuit Court, Chancery Branch, First Division, who entered a judgment in fifteen numbered paragraphs granting the relief prayed for as [135 S.W.2d 916] to the calling of the convention. By the twelfth paragraph of the judgment the matter of receivership was reserved. On appeal to this court the judgment was affirmed in Tobacco Workers International Union v. Weyler, 280 Ky. 355, 132 S.W.2d 754.

Pursuant to this judgment a convention of the T.W.I.U. convened in Louisville on October 23, 1939, and lasted approximately 10 days. At the first meeting of the convention a resolution was adopted directing the attorney for the T.W.I.U. to appear before respondent and dismiss the action. Pursuant to this resolution, or at least after its adoption, an agreed order of dismissal was entered, the concluding paragraphs of which read:

"Whereas the aforesaid judgment has now been fully performed, with the exception of Paragraph 12 thereof providing that the matter of receivership is reserved
"On motion of plaintiffs, by counsel, it is now hereby ordered that the above styled action is hereby dismissed at the costs of the defendants."

No further steps were taken in the action until after the adjournment of the convention on November 3.

On November 6 a second action was filed in the Jefferson Circuit Court against the petitioner, Evans, by the T.W.I.U. on relation of certain members constituting the Operating Board of Trustees of the T. W. I. U. and by these members individually, the action being filed by attorneys who represented the plaintiffs in the first action. This latter action was removed by the petitioner to the Federal Court, where it is now pending. In that action it was alleged that the petitioner had been suspended from office and that the plaintiffs were constituted an operating committee to take over the assets and property of the T. W. I. U. The prayer of the petition was that a receiver be appointed to take over the funds and property of the T.W.I.U. from the petitioner and that he be enjoined from continuing to interfere with or obstruct plaintiffs from exercising the power which the petitioner formerly held as International President-Secretary-Treasurer of the T.W.I.U. and that the Lincoln Bank and Trust Company, which was made a party, be enjoined from paying out any funds of the Tobacco Workers International Union in its control except on the order of the receiver to be appointed.

On November 9 the respondent, without request and on his own motion, called together in conference the attorneys for the plaintiffs in both actions and the attorneys for the petitioner. A portion of this conference was reported by the official stenographer, the reported portion being this statement dictated by the respondent:

"The Court: This situation has disturbed me, and for that reason I have asked counsel for both sides to meet with me, and they were present, as set forth in the caption hereto.
"I want to preface my remarks by saying that I have only admiration and envy for the practice of the case on the part of the defendant Evans, and I hope that when I resume the practice of law I can do as well.
"However, I am personally of the opinion that the defendant, Evans, may, by fraud, have undertaken to evade the orders of this particular court. Frankly, as long as I preside over this court I intend to invoke the Napoleanic maxim of never giving an order that cannot be carried out, and enforcing every order that is given.
"I have reason to suspect that the defendant Evans induced plaintiff to dissolve injunction in order to evade the court's order for a fair convention. This may be so, or it may not be so. If it is so, the court proposes, if it can, to recapture jurisdiction--not of the new case, but of the old one--The order for dismissing the suit is not sixty days old. Whether this court has the power to revoke that order and reinstate the original judgment, I do not know, but the court is going to suggest that inquiry be made and the court will next Tuesday, November 14, 1939, entertain a motion to revoke the order dismissing the original injunction, and reinstating the order. The court does not direct this to be done--but says that it will do so.
"Now, the practice will have to be very exact so that the defendant may be
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30 practice notes
  • Hoskins v. Maricle, No. 2002-SC-0579-MR (KY 12/16/2004), No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • December 16, 2004
    ...applied only when the lower court was proceeding erroneously within its jurisdiction. Id., 271 S.W. at 596. Page 9 Evans v. Humphrey, 281 Ky. 254, 135 S.W.2d 915 (1940), restated the Duffin rule except for the "in all cases" language, which it deleted. Id., 135 S.W.2d at 917. We assume the ......
  • Hoskins v. Maricle, No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 26, 2004
    ...applied only when the lower court was proceeding erroneously within its jurisdiction. Id., 271 S.W. at 596. Evans v. Humphrey, 281 Ky. 254, 135 S.W.2d 915 (1940), restated the Duffin rule except for the "in all cases" language, which it deleted. Id., 135 S.W.2d at 917. We assume the deletio......
  • Childers v. Stephenson
    • United States
    • United States State Supreme Court (Kentucky)
    • February 6, 1959
    ...by appeal, or otherwise, and great injustice and irreparable injury would result to the applicant if it should do so. Evans v. Humphrey, 281 Ky. 254, 135 S.W.2d The inferior court is not threatening to proceed and is not proceeding in the matter but has already acted and has granted final j......
  • Transit Authority of River City (TARC) v. Montgomery, SC-547-DG
    • United States
    • United States State Supreme Court (Kentucky)
    • September 3, 1992
    ...Rankin v. Blue Grass Boys Ranch, Inc., Ky., 469 S.W.2d 767 (1971); Chism v. Lampach, Ky., 352 S.W.2d 191 (1961); Evans v. Humphrey, 281 Ky. 254, 135 S.W.2d 915 (1940). It is emphasized that a judge need not be a automaton or robot or mere umpire. Chism, Evans, Judges are sworn to administer......
  • Request a trial to view additional results
30 cases
  • Hoskins v. Maricle, No. 2002-SC-0579-MR (KY 12/16/2004), No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • December 16, 2004
    ...applied only when the lower court was proceeding erroneously within its jurisdiction. Id., 271 S.W. at 596. Page 9 Evans v. Humphrey, 281 Ky. 254, 135 S.W.2d 915 (1940), restated the Duffin rule except for the "in all cases" language, which it deleted. Id., 135 S.W.2d at 917. We assume the ......
  • Hoskins v. Maricle, No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 26, 2004
    ...applied only when the lower court was proceeding erroneously within its jurisdiction. Id., 271 S.W. at 596. Evans v. Humphrey, 281 Ky. 254, 135 S.W.2d 915 (1940), restated the Duffin rule except for the "in all cases" language, which it deleted. Id., 135 S.W.2d at 917. We assume the deletio......
  • Childers v. Stephenson
    • United States
    • United States State Supreme Court (Kentucky)
    • February 6, 1959
    ...by appeal, or otherwise, and great injustice and irreparable injury would result to the applicant if it should do so. Evans v. Humphrey, 281 Ky. 254, 135 S.W.2d The inferior court is not threatening to proceed and is not proceeding in the matter but has already acted and has granted final j......
  • Transit Authority of River City (TARC) v. Montgomery, SC-547-DG
    • United States
    • United States State Supreme Court (Kentucky)
    • September 3, 1992
    ...Rankin v. Blue Grass Boys Ranch, Inc., Ky., 469 S.W.2d 767 (1971); Chism v. Lampach, Ky., 352 S.W.2d 191 (1961); Evans v. Humphrey, 281 Ky. 254, 135 S.W.2d 915 (1940). It is emphasized that a judge need not be a automaton or robot or mere umpire. Chism, Evans, Judges are sworn to administer......
  • Request a trial to view additional results

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