Hieatt v. Settle

• Court: Kentucky Court of Appeals
• Writing for the Court: SETTLE, C.J.
• Citation: Hieatt v. Settle, 176 Ky. 160, 195 S.W. 420 (Ky. Ct. App. 1917)
• Decision Date: 05 June 1917
• Parties: HIEATT, JUDGE, ET AL. v. SETTLE ET AL.

195 S.W. 420

176 Ky. 160

HIEATT, JUDGE, ET AL. v. SETTLE ET AL.

Court of Appeals of Kentucky.

June 5, 1917

Appeal from Circuit Court, Franklin County.

Action in equity for an injunction by Wallace Settle and others against R. C. Hieatt, Judge, and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded with directions to dissolve the injunction and dismiss the appeal.

W. C Marshall, of Frankfort, for appellants.

Scott &amp Hamilton, of Frankfort, for appellees.

SETTLE C.J.

This is an appeal from a judgment of the Franklin circuit court enjoining the appellants, county judge and county attorney of Franklin county, and an overseer of a public road of that county, from proceeding with the prosecution of appellees under warrants, pending and threatened, for failing to work a public road, the penalty for which, if conviction should result, cannot exceed a fine of $2.50 for each offense; the action being one in equity brought by appellees to obtain the injunction granted.

Appellees' right to the relief sought is rested by the petition upon the theory that the provisions of the road law enacted by the General Assembly in 1914 (Laws 1914, c. 80) give the county court or fiscal court of Franklin county the right to elect whether the public roads of the county shall be maintained by taxation or by the labor of the male citizens of the county between the designated ages and possessing the qualifications prescribed by the statute, but deny it the right to maintain the roads both by taxation and the labor of the citizens of the county. That such election was never made, nor an order entered by the county court dividing the county into road districts, fixing the boundaries thereof or allotting hands to such boundaries, and that the county and fiscal courts are illegally attempting to maintain certain of the roads of the county by the labor of its male citizens and certain others by taxation. It is also alleged in the petition that the appellant W. F. Smither, as overseer of the Leach county road by appointment of the Franklin county court, notified appellees and others to work that road on a designated day and upon their failure to do so illegally caused warrants to be issued by the appellant R. C. Hieatt, county judge, for their arrest, under which warrants they are to be tried before that officer and prosecuted by the appellant W. C. Marshall, as county attorney; that appellees are also threatened by Smither with arrest under other like warrants, and with trials and punishment thereunder if they persist in refusing to work the Leach county road as and when notified by him to do so; that the punishment fixed by the statute for failure to work a public road when notified by the overseer to do so is a fine of $2.50 for each offense, which amount is not sufficient to authorize an appeal by the person convicted to the circuit court or Court of Appeals; and that appellees have no other adequate remedy, and will suffer irreparable injury and loss, unless granted an injunction to restrain appellants from proceeding with the prosecutions under the warrants already issued and pending against them, and from issuing other warrants for their arrest and trial.

The answer of the appellants traversed the averments of the petition, alleged the right of the county court to maintain its roads both by taxation and the working thereof by its male residents, and, further, that after the passage of the act of 1914 it was unnecessary for the county court to make the election referred to in the petition or to enter an order dividing the county into road districts or allot hands in such districts, because the districts had, by order of that court, previously been properly made and hands allotted to each, in conformity to the requirements of the act. On the hearing the circuit court sustained a demurrer to appellants' answer and granted the injunction prayed by appellees. Appellants' dissatisfaction with the judgment led to this appeal.

Section 950, Kentucky Statutes, which governs appeals to this court, provides as follows:

"No appeal shall be taken to the Court of Appeals from a judgment for the recovery of money or personal property, if the value in controversy be less than $200.00, exclusive of interest and cost; nor to reverse a judgment granting a divorce or punishing contempt, nor from any order or judgment of a county court, except in actions for the division of land and allotment of dower, nor from any order or judgment of a quarterly, * * * police, fiscal or justice's court, nor from a bond having the force of a judgment. In all other civil cases, the Court of Appeals shall have appellate jurisdiction over the final orders and judgments of all courts."

Section 347, Criminal Code of Practice gives the Court of Appeals appellate jurisdiction in penal actions and criminal prosecutions for misdemeanors in the following cases only, viz.: If the judgment "be for a fine exceeding $50.00 or for imprisonment exceeding thirty days; or, if the judgment be for the defendant, in cases in which a fine exceeding $50.00, or confinement exceeding thirty days, might have been inflicted."

This is a civil action, but no recovery of money or property of value was sought. The only relief prayed was an injunction. In Thompson Whisky Co. v. Commonwealth, 157 Ky. 393, 163 S.W. 201, we said of section 950, Kentucky Statutes:

"In cases where the only purpose sought is an injunction, this court has jurisdiction. In the case of Ex parte Herrick, 78 Ky. 34, this court said: 'No judgment for money or personal property being sought, and there being no provision of the statute forbidding the appeal, it follows that it should be entertained.' * * * It will be noticed that section 950 of the Statutes, which authorizes appeals, is negative in its form. Primarily it does not grant appeals; on the contrary, it prohibits appeals in certain specified cases, and allows them in all other cases. It is upon this idea that this court entertains appeals in cases where the only remedy sought or obtained is an injunction. Shackelford, Clerk, v. Phillips, 112 Ky. 563 [66 S.W. 419, 68 S.W. 441, 24 Ky. Law Rep. 154]. The statute does not prohibit an appeal in a case of that character. It does, however, specifically say that no appeal shall be taken to this court from a judgment for money where the amount in controversy is less than $200.00, exclusive of interest and cost." Willis v. Thornton, 78 S.W. 215, 25 Ky. Law Rep. 1521.

As the only purpose sought in the case before us was an injunction and no question as to the...