Montgomery v. Houston's Heirs

• Decision Date: 11 October 1830
• Parties: Montgomery v. Houston's Heirs.
• Court: Kentucky Court of Appeals

27 Ky. 488

Montgomery v. Houston's Heirs.

Court of Appeals of Kentucky.

October 11, 1830

Damages. Injunctions. Dissolution. Authority.

ERROR TO THE LINCOLN CIRCUIT; JOHN L. BRIDGES, JUDGE.

Owsley for plaintiff.

Anderson for defendant.

OPINION

UNDERWOOD JUDGE:

This record presents a question growing out of the judicial troubles of the state, resulting from the act of December 1824, purporting to reorganize the court of appeals. Montgomery filed his bill in the circuit court and applied for an injunction which was refused upon the ground that his bill contained no equity. Upon the copy of said bill, W. T. Barry made the following endorsement. " I have inspected this transcript of the record, wherein William Montgomery is complainant and Nathan Houston's heirs are defendants, and am of opinion, that the injunction prayed for in the complainant's bill, was improperly refused by the circuit court, and I do hereby order the same to be granted. Given under my hand, this 27th August, 1825." On the 29th of August, the copy of the bill with said endorsement, was filed in the clerk's office, and an injunction bond executed, in which it is stated that an injunction had been granted by W. T. Barry, one of the judges of the court of appeals. On the said 29th of August, the clerk issued a subpoena, but instead of making the endorsement in the usual form, showing that the judgment at law had been enjoined, he certified the steps taken in the circuit court, and the refusal to grant the injunction, the act done by said Barry and his execution of the bond by Montgomery and his surety as an injunction bond, intending, it would seem, to leave the officer to judge whether these things amounted to an injunction restraining the collection of the judgment at law or not. In June, 1826, the defendants, on the bill, answers, depositions and exhibits, moved the court to dissolve the injunction. The court on consideration, made an order dissolving the injunction, and entered judgment, or a decree against Montgomery for $80, being ten per cent. damages on the amount enjoined and continued the suit. The only question is, did the court err under the foregoing facts, in decreeing the $80, as damages allowed on the dissolution of the injunction.

It has repeatedly been decided by this court, that Mr. Barry was not a judge of the court of appeals as created by and recognized in the constitution, and that he had no authority in virtue of the enactment of December, 1824, to exercise the power and functions of a judge of that court. His act purporting to grant an injunction as judge of the court of appeals would in that character, therefore, have had no more efficacy than a similar act done by any private citizen. It would have been a nullity, had he been a judge of the constitutional court of appeals, unless the provisions of the act of December, 1824, allowing judges of the appellate court to grant injunctions, can be regarded as constituting rules obligatory upon the judges of that court, both in and out of term time,...