Harrison v. Stroud

• Citation: 150 S.W. 993,150 Ky. 797
• Parties: HARRISON v. STROUD et al.
• Decision Date: 27 November 1912
• Court: Court of Appeals of Kentucky

150 S.W. 993

150 Ky. 797

HARRISON v. STROUD et al.

Court of Appeals of Kentucky.

November 27, 1912

Appeal from Circuit Court, Grant County.

Action by Harry Harrison against William Stroud and others. From an order sustaining in part a demurrer to the petition plaintiff appeals. Dismissed.

A. G De Jarnette and E. K. Wilson, both of Williamstown, for appellant.

O. S Hogan, of Frankfort, and Clore, Dickerson & Clayton, of Cincinnati, Ohio, for appellees.

MILLER J.

The appellant, Harry Harrison, and the appellee William Stroud were rival candidates for the office of town marshal of Williamstown at the election held in November, 1907. Appellant received the certificate of election; but upon a contest the circuit court held that Stroud was entitled to the office. In his contest suit Stroud procured an injunction, which prevented Harrison from exercising the duties of the office pending the contest. Upon an appeal however, to this court, the judgment of the circuit court was reversed; this court holding that there was no election, and that the injunction proceedings were without authority of law. See Harrison v. Stroud, 129 Ky. 200, 110 S.W. 828, 33 Ky. Law Rep. 653, 16 Ann. Cas. 1050.

Subsequently Harrison instituted this suit against Stroud and the sureties upon his injunction bond to recover the profits of the office, of which he had been deprived by the injunction, and an attorney's fee in the injunction proceedings. The items of his claim are as follows:

(1) Salary at $20 per month	$ 224 00
(2) Fees for collection of town taxes	100 00
(3) Fees for arrests and service of other process	50 00
(4) Attorney's fee in the injunction proceedings	750 00
(5) Costs recovered in the injunction suit	10 00
Total	$1,134 00

Appellees demurred to each item of the claim, and upon a hearing of the several demurrers the court entered the following order on October 8, 1910: "This cause being submitted on the general and the particular demurrers of the defendants to the petition, and the court being advised, it is ordered and adjudged that the general demurrer to the petition as a whole be overruled, to which the defendants except. That the second demurrer, which goes to so much of the petition as seeks to recover $224 salary as marshal, is sustained, to which the plaintiff excepts. That the third demurrer, which goes to so much of the petition as seeks to recover $100 compensation for collecting the taxes of said town, and $50 in fees for arrests and services of process, is sustained, to which the plaintiff excepts. The fourth demurrer, which goes to so much of the petition as seeks to recover $750 attorney's fees for services rendered by plaintiff's attorneys in an effort to procure a dissolution of the injunction, is sustained, with leave to amend, to which the plaintiff excepts. The fifth demurrer, which goes to so much of the petition as seeks to collect $10 as cost of the former action, is overruled, to which the defendants except. That the sixth demurrer, which demurs to the whole petition, because the plaintiff does not allege any demand made upon the defendants for the payment of the sums sought to be recovered prior to the commencement of the action, is overruled, to which the defendants except."

An amendment having cured the petition as to the fourth item and an issue having been made upon the question of the attorney's fee, upon a trial of that issue before a jury, plaintiff recovered a verdict and judgment for $60, which has been paid. Appellant, however, is...