Martin v. Stumbo
| Decision Date | 03 May 1940 |
| Parties | MARTIN v. STUMBO. |
| Court | Kentucky Court of Appeals |
Proceeding by Lee Martin and others against W. L. Stumbo, for injunction against levy of execution issued on replevin bond. On motion for temporary injunction.
Motion overruled, and injunction denied.
C. B Wheeler, of Prestonsburg, for plaintiff.
Bert T Combs and Leroy Combs, both of Prestonsburg, for defendant.
In February, 1934, an order was entered in the Floyd County Court appointing a county judge pro tem. The defendant, W. L Stumbo, who was county judge of Floyd County, filed an action in the quarterly court against the plaintiffs, Lee Martin and others, to recover judgment on a promissory note in the sum of $200. In August, 1934, judgment was rendered on the note in Stumbo's behalf against Martin and others by the pro tem county judge, Stumbo being disqualified. Execution was issued on this judgment and was replevied. When the replevin bond became due, execution was issued thereon, whereupon a suit was filed and motion made in the quarterly court in August, 1935, seeking to set aside the judgment. The motion to set aside the judgment was overruled and the petition dismissed, and an appeal was taken from that judgment of the quarterly court to the circuit court, the appeal being filed in the circuit court on October 23, 1935. On this latter date an action was instituted in the circuit court seeking to enjoin the levy of the execution issued on the replevin bond and in this action a temporary restraining order was issued by the clerk enjoining the levy. The appeal to the circuit court was consolidated with the action in which the injunction was sought.
On March 1, 1940, the defendant, Stumbo, moved for a dissolution of the temporary restraining order, and on March 9 the court sustained this motion and the restraining order was set aside and the plaintiffs were given 20 days in which to make application to a Judge of the Court of Appeals to reinstate it. When the temporary restraining order was dissolved, the plaintiffs made no motion for a temporary injunction and having failed to do so, were in no position to make a motion for an injunction before a Judge of this court. To remedy this situation, a motion was made for a temporary injunction on March 13, and the temporary injunction was denied by the trial court. The cause is now before me, a Judge of the Court of Appeals, on motion for a temporary injunction to enjoin the levy of the execution issued on the replevin bond. The plaintiffs, in support of their motion, contend: (1) That the pro tem county judge does not, by virtue of his appointment as such, become judge of the quarterly court, and (2) that therefore, the judgment was void. We will consider these contentions in order.
The concluding sentence of section 139 of the State Constitution establishing quarterly courts provides that "the judges of the county court shall be the judges of the quarterly courts" and section 1059, Kentucky Statutes, as amended in 1930, provides that: .
A casual reading of the constitutional and statutory provisions referred to would seem to confer on the county judge pro tem the right to act as judge of the quarterly court but a closer examination of our law reveals that such is not the case. The constitutional provision does not confer the right since it only makes the judge of the county court judge of the quarterly court as well--it does not profess to deal with pro tem county judges. We are therefore relegated to section 1059, which authorizes the county judge pro tem, when the county judge is unable to perform the duties of his office, to perform any and all duties imposed by law upon the regular county judge.
Construing this statute, it was held in Jefferson County Fiscal Court v. Grauman, County Attorney, et al., 281 Ky. 608 136 S.W.2d 1102, that it must be interpreted to authorize the pro tem county judge to perform only those duties devolving upon the county judge as such and that the county judge pro tem did not have authority to serve as a member of the fiscal court when the county judge was absent. The basis of the decision was that section 1833, Kentucky Statutes, provided that when the county judge was not present at a meeting of the fiscal court "a majority of the justices of the peace shall elect one of their number to preside; said justice so elected to act as judge of said court during the absence or inability of a county...
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...even, we may add, as is the quarterly court. Jefferson County Fiscal Court v. Grauman, 281 Ky. 608, 136 S.W.2d 1102. In Martin v. Stumbo, 282 Ky. 793, 140 S.W.2d 405, (a civil case decided before the Act of 1942 authorizing the appointment of a quarterly judge pro tem) it was held that a co......
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