Kilpatrick v. Tunstall

• Decision Date: 15 December 1830
• Citation: 28 Ky. 80
• Parties: Kilpatrick v. Tunstall,
• Court: Kentucky Court of Appeals

28 Ky. 80

Kilpatrick v. Tunstall,

Court of Appeals of Kentucky.

December 15, 1830

Injunction. Damages. Surety. Replevin Bond.

ERROR FROM THE MADISON CIRCUIT; RICHARD FRENCH, JUDGE.

Turner for plaintiff.

Caperton for defendant.

OPINION

ROBERTSON CHIEF JUSTICE:

A fieri facias having been issued on the 24th of March, 1829, in favor of Hugh Kilpatrick, on a replevin bond executed to him by James Givens, as principal, and David McAlexander and Richard Tunstall, as sureties, Tunstall, on the the 7th of April, 1829, obtained an injunction restraining a levy of the execution on his property, until a ?? of land, the alleged property of Givens, had first been levied on.

On a motion to dissolve the injunction on the face of the bill Tunstall showed, by the return on the fieri facias, which had issued in March, that Kilpatrick had not been delayed by the injunction, but that the execution had been levied on Givens' land on the day after the injunction issued, and had been satisfied by a sale of a part of the land; and therefore, at the succeeding term, the bill was dismissed at Tunstall's cost and on his own motion, but no order was made for dissolving the injunction.

The plaintiff in error insists that the circuit court erred in withholding a decree for dissolution and for damages.

Injunction, obtained by surety in a replevin bond, restraining a levy of the execution on his property, until a tract of land, the alleged property of the principal, has been levied on, is a proceeding cntrary to principle, practice or authority.

It is true that the injunction was improvidently awarded. Such a procedure, for the purpose merely of saving the property of the surety by compelling a levy on that of the principal, is without the sanction of either principle, practice, or authority.

It is equally true, as a general propos??ion, that, on the dissolution of an injunction, which suspended the enforcement of a judgment, the law entitles the creditor to 10 per cent damages for the vexation and delay.

But this law must not be perverted, as we think it would be, by being applied perempto??ly to this case. Here the creditor has not been delayed an instant in his remedy. His judgment has not been injoined; he has only been directed to make the amount of it out of his principal debtor, and he has done so, as soon as he would have had a right to coerce it without any interference by the defendant in error.

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