Lillard v. Brannin

• Decision Date: 09 May 1891
• Parties: LILLARD v. BRANNIN et al.
• Court: Kentucky Court of Appeals

16 S.W. 349

91 Ky. 511

LILLARD v. BRANNIN et al.

Court of Appeals of Kentucky.

May 9, 1891

Appeal from Louisville law and equity court.

"To be officially reported."

O'Neal Phelps & Pryor, for appellant.

Dodd &amp Dodd, for appellees.

PRYOR J.

John W & O. C. Richardson obtained leases of gas and oil rights in lands bordering upon the Ohio river, in the county of Meade and, with a view of utilizing their leases organized a corporation with a capital stock of a half million of dollars. They entered into some arrangement with the appellant, Lillard, by which they agreed, if he and his associates would raise a certain amount of money to enable them to begin operations, they would transfer and deliver to them $50,000 of the stock. Lillard applied to the appellees Brannin & Brand to assist him in disposing of the stock, so as to raise the $10,000, and agreed to divide equally with them this $50,000 for their services or aid in raising the money. They raised the money, as they allege, having accepted his proposition, and, after complying with their contract, the appellant, Lillard, refused to make any transfer of the stock, as he had agreed to do, and, insisting that the contract had in some manner been canceled, refused, after demand, to give them any interest in the stock whatever. This is the substance of the averments of their petition in which they obtained an injunction to prevent the transfer of stock to others by the appellant, and asking that the transfer be made to them in proportion to their interest on the books of the corporation, making the corporation a defendant to the action, and praying for all general relief. Under the prayer for general relief, the plaintiffs obtained a judgment for $10,000, the value of the stock, the defendant declining to make any transfer to the plaintiffs, but claiming its transfer to some one else. The corporation is located in Louisville, upon which service was had, and Lillard, the appellant, residing in Breckenridge county, a summons was directed to the sheriff of that county, and not served, but a return made by a deputy, from which it appeared the appellant was evading the service of process. On an affidavit filed by the appellees, a special bailiff was appointed to serve the summons, under section 668 of the Civil Code, providing that "the court, for good cause, may appoint a person to serve a particular process or order, and he shall have the same power to execute it which a sheriff has. His return must be verified by his affidavit," etc. After ineffectual attempts to serve process in Breckenridge county had been made by the sheriff of that county, and by a special bailiff, the court appointed C. F. Leatherman and several others as special bailiffs to execute the summons, and finally the same was served by Leatherman, either in Meade or Breckenridge county, under the special appointment; Leatherman being a resident of Jefferson county. Civil Code, c. 1, tit. 15, § 667, provides the officers to whom process may be directed, and is as follows: "Every...