Glass v. Alcorn

• Decision Date: 24 April 1934
• Citation: 70 S.W.2d 964,254 Ky. 16
• Parties: GLASS v. ALCORN, Circuit Judge.
• Court: Kentucky Court of Appeals

70 S.W.2d 964

254 Ky. 16

GLASS v. ALCORN, Circuit Judge.

Court of Appeals of Kentucky

April 24, 1934

Petition for writ of prohibition by Holman Glass against K. S. Alcorn Judge of the Garrard Circuit Court.

Application denied, and petition dismissed.

John S Deering, of Nicholasville, for plaintiff.

Lewis L. Walker, of Lancaster, for defendant.

CLAY Justice.

Holman Glass brought this suit for a writ of prohibition prohibiting K. S. Alcorn, Judge of the Garrard circuit court from enforcing a rule against plaintiff. The right to the writ is challenged by demurrer.

Briefly stated the facts relied on are: W. P. Watts brought suit in the Garrard circuit court to recover on two contracts for the purchase of hempseed. One contract was signed by H. C. Glass & Son, Agent, and the other by H. C. Glass & Son, Agent, W. F. Corporation, Limited. The parties defendant were H. C. Glass and his son, Charlie Glass, and H. W. Bellrose, W. F. Carpenter, and ______ Auerbach. The petition proceeded on the theory that H. C. Glass & Son were either partners with Bellrose, Carpenter, and Auerbach, or their agents, and had not disclosed their principals. An attachment was issued and levied on about 800 bags of hempseed in possession of H. C. Glass & Son, and a copy of the order was delivered to them. Glass & Son interposed a demurrer to the petition, which was sustained. They also filed an answer stating that they were acting as agent for the World Fiber Corporation. About three years later Watts filed an amended petition asking that the name W. F. Carpenter be withdrawn, and that the W. F. Corporation be made a party defendant. The W. F. Corporation was proceeded against as a nonresident.

In the original petition, Bellrose, Carpenter and Auerbach were proceeded against as nonresidents, and a warning order was issued for them. Bellrose filed an answer stating that he was the agent of the World Fiber Corporation of Toronto, Canada. Auerbach answered, and stated that he was the attorney for the corporation. Both he and Bellrose disclaimed any interest in the hempseed. In his answer, Glass stated that Bellrose, Carpenter, and Auerbach had no property of any kind in his possession, and that he owed them nothing. No ground of attachment was alleged against the World Fiber Corporation, and no attachment was issued against its property. However, a bond was executed to the corporation.

After hearing evidence, the court entered an order sustaining the attachment and awarding Watts a lien on the 800 bags of hempseed stored in the warehouse of Glass & Son to secure the payment of $2,817, subject to a credit of $1,252, with interest from January 2, 1930, until paid, and directing the sheriff to sell the hempseed. The petition, in so far as it sought a personal judgment against H. C.

Glass & Son, was dismissed. To this ruling Watts objected and excepted, and prayed and was granted an appeal to this court. To that portion of the judgment decreeing a sale of the attached property, H. C. Glass & Son objected and excepted and prayed and were granted an appeal.

Thereafter a rule was issued against Glass & Son to show cause why they should not be prosecuted for contempt in failing to turn over to the former sheriff of Garrard county the 800 bags of hempseed attached in their hands. Glass & Son responded that they had been dismissed, and that the court had no further jurisdiction over them, and that the farmers who contracted to sell the hempseed to the World Fiber Corporation came and took the seed away when they were not paid for. They further responded that the judgment was void, and of no effect. After hearing evidence in open court the court adjudged the response insufficient, and entered an order directing Glass & Son to produce and turn over to the sheriff the 800 bags of hempseed, less 156 bags already taken by the sheriff, or, in the event of their failure to produce the hempseed, to pay into court a sum sufficient to pay the debt, interest, and costs after giving credit for the 156 bags in the hands of the sheriff at $3 a bag.

The petition further charges that the judge of the Garrard circuit court, unless prohibited, will proceed to commit plaintiff to jail, to his great and irreparable damage, and that he has no adequate or any remedy at law. By an amendment it is made to appear that plaintiff made a ...