Mid-Southern Toyota, Limited v. Pennington, MID-SOUTHERN

Decision Date09 October 1970
Docket NumberMID-SOUTHERN
PartiesTOYOTA, LTD., et al., Petitioners, v. Honorable Henry V. PENNINGTON, Judge, Boyle Circuit Court, Respondent.
CourtUnited States State Supreme Court — District of Kentucky

Joseph J. Leary, Frankfort, for petitioners.

Henry V. Pennington, pro se.

James F. Clay, Clay & Clay, Danville, for Bug's Imports, Inc., intervenor.

DAVIS, Commissioner.

Mid-Southern Toyota, Ltd., and Amco Industries, Inc., have invoked the original jurisdiction of this court seeking to prohibit Honorable Henry V. Pennington, Judge of the Boyle Circuit Court, from entering summary judgment against them in the approximate sum of $171,300. Kentucky Constitution, Section 110. The respondent judge announced his intention to enter the judgment, pending this court's ultimate ruling in the present proceeding. A temporary order of prohibition was issued to preserve the status quo until final decision could be made.

The present controversy has arisen since remand of the litigation dealt with in Mid-Southern Toyota, Ltd. v. Bug's Imports, Inc., Ky., 453 S.W.2d 544. Bug's Imports, Inc. (Bug's) has intervened in the present proceeding, resisting the motion for an order of prohibition.

Bug's moved for summary judgment upon remand of the case. The motion was accompanied by an affidavit partially, but incompletely, alleging the number of vehicles for which Bug's deemed itself entitled to commission at $100 per car. Mid-Southern filed no response to that motion, although it is apparent that Mid-Southern has vigorously maintained in the circuit court, as it does here, that there simply is no authority in law for Bug's to seek summary judgment for recovery of money in a declaratory judgment proceeding devoid of any pleading asserting a claim for such monetary recovery.

It is the view of the respondent judge, shared by intervenor Bug's, that KRS 418.055 provides ample basis for the motion for summary judgment by virtue of its proviso:

'Further relief, based upon a declaratory judgment * * * may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief, either in the same proceeding wherein the declaratory judgment * * * was entered, or, in an independent action.'

We regard it as unnecessary to now determine whether KRS 418.055 gives basis for the effort of Bug's to obtain a money judgment. At first blush, it would appear so upon the filing of an appropriate pleading. The trial judge has the...

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3 cases
  • Humphrey v. Commonwealth Bank
    • United States
    • Kentucky Court of Appeals
    • April 6, 2018
    ...error by the trial judge must follow the proper channels to correct that perceived error. Id.; see also Mid-Southern Toyota, Limited v. Pennington, 458 S.W.2d 776, 777 (Ky. 1970)("We are unable to perceive wherein the regular avenue of appeal would be inadequate as a channel for relief from......
  • Griffith v. Schultz
    • United States
    • United States State Supreme Court — District of Kentucky
    • November 3, 1980
    ...a judicial officer is that he is without jurisdiction or is proceeding erroneously within his jurisdiction. Mid-Southern Toyota, Ltd. v. Pennington, Ky., 458 S.W.2d 776 (1970); Faulkner v. Bertram, Ky., 435 S.W.2d 60 (1968). Even as the question of jurisdiction became moot as to the jailer ......
  • Mid-Southern Toyota, Limited v. Bug's Imports, Inc.
    • United States
    • United States State Supreme Court — District of Kentucky
    • June 9, 1972
    ...among the litigants. See Mid-Southern Toyota, Ltd. v. Bug's Imports, Inc., Ky., 453 S.W.2d 544 (1970), and Mid-Southern Toyota, Ltd. v. Pennington, Ky., 458 S.W.2d 776 (1970). The disputes arose over the interpretation of a 'Mutual Letter of Intent' which was the basis of a warehousing fran......

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