Kelly v. Toney

• Decision Date: 24 February 1894
• Citation: 25 S.W. 264,95 Ky. 338
• Parties: KELLY v. TONEY, Judge.
• Court: Kentucky Court of Appeals

25 S.W. 264

95 Ky. 338

KELLY v. TONEY, Judge.

Court of Appeals of Kentucky.

February 24, 1894

"To be officially reported."

Petition by C. W. Kelly for mandamus to compel Sterling B. Toney judge of the Jefferson circuit court, to grant an appeal from a certain judgment. Petition granted.

Byron Bacon, C. B. Seymour, B. F. Buckner, and Ernest Macpherson for plaintiff.

Humphrey & Davie, for defendant.

HAZELRIGG J.

This case is before us on motion of the complainant, Kelly, for a mandamus against the judge of the law and equity division of the Jefferson circuit court, to compel him to grant an appeal from the following judgment: "John Mitchell against Oregon Gold Mining Company. At a court held for the Jefferson circuit court, law and equity division, on the 8th day of January, 1894: This cause having been heard on the motion of the plaintiffs to enjoin and restrain the defendant, Clinton W. Kelly, from proceeding to interfere with the possession of this court, through its receiver, of the property of the Oregon Gold Mining Company, situated in the county of Union state of Oregon, and the court being advised, it is ordered that until the further order of this court the said defendant, C. W. Kelly, be, and he is hereby, enjoined and restrained from further prosecuting, or permitting to be prosecuted, any motion or proceeding to which he is party, in the state of Oregon, having for its purpose the taking of the possession of the property of said company in Union county Or., or its mines, mills, machinery, equipment, or other property, near Cornucopia, Or., or elsewhere in said state, or from further refusing or failing to cause his suit now pending in said state of Oregon against said company to be abated and dismissed, so far as it seeks the appointment of a receiver of said property, or the taking possession of said property by a receiver, and from refusing and failing to withdraw his motion and proceedings in said case, and from taking, or allowing to be taken, any steps in said case in carrying into effect any motion or order for a receiver, or for the taking possession of said property by a receiver. And the plaintiffs paid into the court herein the sum of five dollars, and, on motion of plaintiffs, leave is given to defendant, C. W. Kelly, to immediately withdraw said sum from the court herein, to be applied by him in paying for the sending of a telegram at once to his counsel in said suit in Oregon, directing the withdrawal or dismissal of the proceedings for a receiver of said property, and...