Ohio River Contract Co. v. Gordon

• Decision Date: 24 November 1916
• Citation: 189 S.W. 451,172 Ky. 404
• Parties: OHIO RIVER CONTRACT CO. v. GORDON, JUDGE.
• Court: Kentucky Court of Appeals

189 S.W. 451

172 Ky. 404

OHIO RIVER CONTRACT CO. v. GORDON, JUDGE.

Court of Appeals of Kentucky.

November 24, 1916

Petition for writ of prohibition by the Ohio River Contract Company against Thomas R. Gordon, Judge. The petition was overruled and the writ denied, and petitioner appealed, presenting its petition for writ of error from the United States Supreme Court, which was allowed, and respondent moves to dissolve the temporary restraining order entered upon filing of the petition for writ of prohibition, and to vacate and set aside so much of the order allowing the writ of error as provided that it should operate as a supersedeas. Motions overruled.

See also, 186 S.W. 178.

J. P Hobson & Son, of Frankfort, and Richards & Harris, of Louisville, for petitioner.

Matt O'Doherty and O'Doherty & Yonts, all of Louisville for respondent.

MILLER C.J.

This was an original proceeding in this court by the Ohio River Contract Company, as petitioner, to prohibit Thomas R. Gordon, judge of the Jefferson circuit court, from proceeding with the trial of the case of John J. Haines v. Ohio River Contract Company, then pending in Judge Gordon's court.

Haines's suit was for damages for personal injuries received by him while working for the petitioner in the construction of a lock and dam in the Louisville & Portland Canal, upon land which was the property of the United States, and the petitioner claimed the state court was without jurisdiction to try the case, for that reason. Upon the filing of the petition for the writ of prohibition, this court entered an order on February 29, 1916, whereby Judge Gordon was "temporarily restrained and prohibited from proceeding further" with Haines's action, "until the further orders of this court." This was the usual order entered in cases of this character for the purpose of preserving the status until the application for the writ could be heard upon its merits. On May 26, 1916, pursuant to an opinion then filed, and reported in 170 Ky. 412, 186 S.W. 178, the petition for the writ of prohibition was overruled and the writ was denied, at the cost of the petitioner. No formal order was entered, however, dismissing the temporary restraining order of February 29, 1916, above referred to. On June 27, 1916, the petitioner, the Ohio River Contract Company, presented to the Honorable W. E. Settle, acting Chief Justice of this court, its petition for a writ of error from the United States Supreme Court to the Court of Appeals of Kentucky, together with its bond conditioned according to law, praying that the writ of error be allowed, that the citation be signed and granted, that the bond be approved, and that "such bond may operate as a stay of the proceedings in said Jefferson circuit court." Thereupon the acting Chief Justice made the following indorsement upon the petition:

"The writ of error as prayed for in the foregoing petition is hereby allowed this 27th of June, 1916, the writ of error to operate as a supersedeas; and the bond for costs is fixed in the sum of five hundred ($500.00) dollars; and the same being tendered herewith, is approved. Dated at Frankfort, Ky. this 27th day of June, 1916. W. E. Settle, Acting Chief Justice Court of Appeals of Kentucky."

The proceedings under the writ of error were continued by having the record copied and filed in the office of the clerk of the United States Supreme Court, where the hearing of the writ of error is now pending.

On November 1, 1916, the respondent Gordon, pursuant to notice, moved this court: (1) To dissolve the temporary restraining order which was issued herein on February 29, 1916; and (2) to vacate and set aside so much of the order of June 27, 1916, allowing the writ of error, as provides that the writ of error shall operate as a supersedeas.

1. We understand the contention of the petitioner to be that the order of acting Chief Justice Settle, directing that the order granting the writ of error should operate as a supersedeas, had the effect of keeping the temporary restraining order in force until the case should be finally disposed of in the Supreme Court of the United States. This contention is based upon the fact that no formal order was entered dismissing the temporary restraining order when the case was finally disposed of by the denial of the writ.

We do not so understand the effect of the final order of this court denying complainant's petition for the writ of prohibition. It should not be overlooked that the temporary restraining order was issued only for the purpose of preserving the status of the case pending the trial, and until some further or final order should be made. It expressly so declares. So, when the case was finally heard and the writ of prohibition was denied, that was the final order in the case (Civil Code, § 475), and necessarily carried with it a dismissal of the entire case, including the annulment of the temporary order of prohibition. Any other view must necessarily hold that the temporary writ of prohibition was in effect after the final writ of prohibition had been denied--a position that cannot, with reason, be maintained.

In the late case of Potter v. Yonts, 172 Ky. 132, 188 S.W 1059, the clerk had granted a temporary injunction, and upon the trial the circuit court dismissed the petition, but did not...