Louisville, Henderson & St. Louis Ry. Co. v. Commonwealth

• Decision Date: 02 June 1898
• Citation: 104 Ky. 35
• Parties: Louisville, Henderson & St. Louis Railway Co. v. Commonwealth.
• Court: Kentucky Court of Appeals

104 Ky. 35

Louisville, Henderson & St. Louis Railway Co. v. Commonwealth.

Court of Appeals of Kentucky.

June 2, 1898.

APPEAL FROM MEADE CIRCUIT COURT.

HELM, BRUCE & HELM FOR APPELLANT.

WEED S. CHELF FOR APPELLEE.

ATTORNEY-GENERAL W. S. TAYLOR ALSO FOR APPELLEE.

JUDGE PAYNTER DELIVERED THE OPINION OF THE COURT.

The indictment is under section 786, Ky. Stat., which reads as follows: "Every company shall provide each locomotive engine passing upon its road with a bell of ordinary size, and steam whistle, and such bell shall be rung, or whistle sounded, outside of the incorporated cities and towns, at a distance of least fifty rods from the place where the road crosses upon the same level any highway or crossing, at which a sign-board is required to be maintained, and such bell shall be rung or whistle sounded continuously or alternately until the engine has reached such highway crossing, and shall give such signals in cities and towns as the legislative authorities thereof may require." Under section 793, the penalty for violating the section quoted shall be not less than $100 nor more than $500. The evidence was sufficient to authorize the jury to find the appellant guilty, and the punishment was fixed at a fine of $400.

The sheriff who executed the summons which was issued upon the indictment had gone out of office when this case was called for trial. It appeared that he had failed to sign the return which he had written upon the summons. The summons was executed in December, 1897. The sheriff's term of office expired January 1, 1898. Upon motion of the Commonwealth, the court allowed him to sign the return on the summons, and also to amend it by making it show that the agent of the railroad company upon whom the summons was served was the freight and passenger agent nearest the court house in Brandenburg, the county seat of Meade county, where the indictment was pending. It is insisted by counsel for appellant that the court erred in thus allowing the sheriff to amend his return on the summons after his term of office had expired. In Newton v. Prather, 1 Duv. 100, the court held that a sheriff may, with leave of court, amend his return after the expiration of his term, with the same effect as if the amendment had been made during his term. It is insisted that this case is in conflict with the case of Armstrong v. Easton, 1 B. Mon. 66, and that this court should follow the latter case. The court, in Newton v. Prather, reviewed the case of Armstrong v. Easton, and reached the conclusion that the court did not decide in that case that the sheriff, after he had gone out of office, could not, by permission of the court, amend a return which he had made while in office. More than thirty years have elapsed since the case of Newton v. Prather was decided, which settled the practice with reference to the right of the sheriff to make amendments to returns, and we do not feel disposed to overrule that case. To follow the practice recognized as being correct in that case will in a great many cases enable parties to preserve their rights, while the case will be rare, if one ever occurs, wherein wrong and injury will result by permitting a sheriff to make such amendments. The courts will usually be able to protect and preserve the rights of all interested, on a motion to allow such amendments to be made.

The sheriff executed the summons upon...