Holliday v. Spahr

Decision Date27 May 1938
PartiesHolliday v. Sphar.
CourtUnited States State Supreme Court — District of Kentucky

Appeal from Clark Circuit Court.

MARCUS C. REDWINE and J. SMITH HAYS for appellant.

D.L. PENDLETON, J.M. STEVENSON and FRANK STEVENSON for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Affirming.

W.M. Holliday sued W.R. Sphar and sought to recover of him upon certain injunction bonds, $3,636.76, for alleged damages for the wrongful issue of certain injunctions obtained against him. Holliday was unsuccessful and he has appealed. The reader of this opinion will understand it better if he will first read the opinion in Holliday v. Sphar, 262 Ky. 45, 89 S.W. (2d) 327.

On May 22nd, 1935, Sphar filed a petition in equity in the Clark Circuit Court against W.M. Holliday. In order that we may know exactly the relief sought, we copy here the prayer of that petition and have italicised a part of it for our convenience.

"Wherefore the plaintiff, William R. Sphar, prays that the defendant, W.M. Holliday be perpetually enjoined and restrained, and that a temporary restraining order be issued herein enjoining and restraining the defendant, W.M. Holliday, from erecting or building any other building or improvement on his said lots other than a residence costing not less than Thirty-five Hundred Dollars ($3500.00) and not closer to his front property line than twenty-five (25) feet on Boone and Belmont Avenues, and he prays for his costs and all proper relief."

On June 3rd, 1935, Holliday filed his answer, and here is a copy of the relief he sought in that answer and we have italicised a portion of it.

"Wherefore, the defendant prays that the plaintiff take nothing by his petition and it be dismissed, and that the defendant recover of the plaintiff his cost herein expended and he prays for all proper relief."

If we were to strike out the italicised portions of the prayers of this petition and answer there would be nothing left at issue which shows conclusively that the only thing involved on that former trial was the injunctive relief which Mr. Sphar was seeking. Upon the final hearing of that former case in this court, it was held Sphar was not entitled to that injunctive relief.

When he first filed his suit, Sphar executed a bond and obtained from the clerk a temporary restraining order on the 22nd of May, 1935. We give here a copy of that bond, omitting the caption and signatures.

"We, William R. Sphar, principal, and J.M. Stevenson his surety, undertake to the Defendant that the Plaintiff William R. Sphar shall pay to the Defendant, W.M. Holliday the damages he may sustain not to exceed One Thousand Dollars, if it be finally decided that the injunction herein should not have been granted."

On June 4th, 1935, the trial court heard that former case upon Holliday's motion to dissolve that temporary restraining order and Sphar's motion for a temporary injunction. The trial court by its order then entered (to become effective 20 days thereafter) so modified the restraining order as to allow Holliday to go ahead with the construction of his proposed building and overruled Sphar's motion for a temporary injunction.

Application was made to a member of this court and such member directed that a temporary injunction issue to preserve the status until the case could be heard on its merits.

Pursuant thereto and on July 14th, 1935, Sphar obtained a temporary injunction, and executed a bond, which, omitting the caption and signatures, is as follows:

"We, W.R. Sphar, principal, and J.M. Stevenson, surety, undertake that said W.R. Sphar will pay to the defendant, W.M. Holliday, such damages as he may sustain, if it be finally decided that the temporary injunction issued under order of Hon. William Rogers Clay, Judge of the Court of Appeals of Kentucky, ought not to have been granted."

This is an action by W.M. Holliday against Mr. Sphar on these bonds, in which he sought to recover for the following:

                Net profits of business for 8 1/2 months ..... $3,049.00
                Attorney's fees in former suit ...............    450.00
                Expenses and cost, in former suit ............    137.76
                                                               _________
                   Total ..................................... $3,636.76
                

This charge of expense and cost totaling $137.76 was itemized as follows:

                Defendant's cost due L.D. Aldridge ............. $ 22 50
                Sheriff's fee, due Lisle Fox ...................    1.70
                Taxed attorney's fee ...........................    5.00
                Writ tax .......................................     .50
                Depositions, paid Mrs. Elkins ..................   19.20
                Carbon copy of transcript paid by Holliday .....   17.36
                Holliday's expenses to Richmond, Frankfort
                    Shelbyville ................................   30.00
                Cost of printing brief .........................   27.50
                    Paid out by Holliday for labor just before
                    restraining order was issued ...............    8.00
                
                Paid by Holliday to L.A. Nevins for pictures
                    used on the trial ..........................    6.00
                                                                 _______
                                                                 $137.76
                

Upon the hearing of this cause Holliday admitted that Sphar had paid a part of the first five items in the above account, and Sphar offered to confess judgment for the $24.70 remaining of such five items and the court awarded Holliday. a judgment against Sphar for $24.70 and cost to that day expended. Thereupon, Sphar moved to strike the remainder of Holliday's petition as amended, which motion the court sustained. The plaintiff declined to plead further and the court awarded Holliday a judgment against Sphar for the costs to that date expended and dismissed Holliday's petition and he has appealed.

Ordinarily a motion to strike cannot be used in place of a demurrer. See Louisville & N.R. Co. v. Horton, 187 Ky. 617, 219 S.W. 1084; Mann v. Woodward, 217 Ky. 491, 290 S.W. 333; Burton v. Ott, 226 Ky. 647, 11 S.W. (2d) 700; City of Princeton v. Baker, 237 Ky. 325, 35 S.W. (2d) 524; 49 C.J. 686, sec. 975.

However in this case the parties treated this motion to strike as a demurrer, the court treated it as a demurrer, and the order shows that Holliday declined to further amend his petition and thereupon the court dismissed it. So, we will do as they did. We will treat it as a demurrer in our examination of this record. The effect of sustaining this motion to strike was to deny Holliday the right to recover his alleged profits of $3,049.00, his attorney's fee of $450.00 and the last five items (aggregating $88.86) of his $137.76 claim. We shall now consider these as Holliday set them out in his amended petition.

The $3,049.00 Claim.

Holliday alleged that he was deprived of the use of his property for 8 1/2 months and that if he had been allowed to use that property for that time he would have made profits and incurred expenses as follows:

                Gross Profits — Sales for 8 1/2 months
                Gasoline — 9,000 gallons per month, 4 cents
                    per gallon profit or $360.00 per month
                    or 8 1/2 months ........................     $3,060.00
                
                Oil — 400 quarts per month, at least 10 cents
                    quart profit or $40.00 per month or for
                    8 1/2 months ...........................        340.00
                Store — Gross Sales per day $30.00 with average
                    20% profit, or about $180 per month
                    or for 8 1/2 months ....................      1,530.00
                Expense of doing
...

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