Hayes v. Blackwell
| Decision Date | 13 December 1946 |
| Citation | 198 S.W.2d 203,303 Ky. 548 |
| Parties | HAYES v. BLACKWELL. |
| Court | Kentucky Court of Appeals |
Original action by Susie Hayes against Judge Marlin L. Blackwell Judge of the Henderson Circuit Court, to prohibit the judge from proceeding to try, hear, and dispose of a divorce action pending in the Henderson Circuit Court wherein petitioner's husband sought a divorce.
Petition dismissed.
O. W Jenkins and Hardin H. Herr, both of Louisville, for petitioner.
Geo. S Clay, of Henderson, for respondent Blackwell.
This is an original action filed in this court by petitioner, Susie Hayes, against Judge Marlin L. Blackwell Judge of the Henderson circuit court, pursuant to the provisions of section 110 of our Constitution, seeking to prohibit him as such judge from proceeding to try, hear and dispose of a divorce action pending in the Henderson circuit court wherein petitioner's husband sought a divorce from her.
The grounds for the prohibitory writ herein sought was and is, that respondent has no jurisdiction of the pending divorce action before him in the Henderson circuit court, because petitioner at the time of the filing of that action had abandoned her residence in Henderson County and had acquired one in Jefferson County, which, if true, would deprive respondent of jurisdiction to try and hear the divorce action pending in his court.
Upon the initial hearing for a temporary writ made at the time of filing the petition in this court on September 12, 1946, we entered an order granting a temporary writ prohibiting respondent from taking any steps or making any order in the divorce action pending before him 'until the further orders of this court.' That order was made because the members of this court who heard the motion for the temporary writ concluded that a permanent writ should not be issued without this court having before it the testimony heard by respondent when he overruled petitioner's plea in abatement filed by her in that case, which was bottomed on the alleged fact of her having abandoned Henderson County as the place of her residence at the time his divorce action against her was filed by him, which was on January 30, 1946.
Accompanying the petition filed in this court was a batch of testimony that petitioner had taken prior to the filing of her action in this court which contained her testimony, that of her niece to whose home she went when she did leave Henderson that of a witness and kinsman living in Sonora, Hardin County, Kentucky and perhaps others. Petitioner herself testified in that deposition, and her testimony was very much confused and not sufficient to base any finding as to the crucial fact in this case,...
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