Puckett v. Jameson

Citation162 S.W. 801,157 Ky. 172
PartiesPUCKETT et al. v. JAMESON, Sheriff. WELLS v. SAME. PROFITT et al. v. SAME.
Decision Date28 January 1914
CourtCourt of Appeals of Kentucky

Appeals from Circuit Court, Lee County.

Suit by Wick Puckett, A. J. Wells, and Christina Profit, and others to restrain Walker Jameson, as sheriff, from executing a writ of habere facias possessionem. From a decree dismissing the petition in each case, petitioners appeal. Reversed and remanded.

H. L Wheeler and Sutton & Hurst, all of Beattyville, for appellants.

H. S McGuire and H. D. Parrish, both of Beattyville, for appellee.


These three appeals, styled as above, and involving the same questions, were by agreement submitted together and will be disposed of by this single opinion. It is alleged in the petitions, respectively, that the appellee, Walker Jameson as sheriff of Lee county, has in his hands as write of habere facias possessionem, issued upon a judgment of the Lee circuit court in the case of John M. Smyth, etc., v. Wash Miller, etc., under and by virtue of which he is illegally threatening to dispossess the appellants, respectively, of certain lands particularly described in the petitions, respectively, and that he will dispossess them thereof, unless restrained by an injunction from so doing. In addition to the formal averments required in obtaining an injunction, it is alleged in each of the petitions that the plaintiff's therein were the owners, and had for more than 15 years continuously been in the actual adverse possession of the lands therein described; that the appellants, plaintiffs therein, respectively, were not parties or privies to the action in which the writ of habere facias possessionem was issued, and were not bound by the judgment rendered therein or the writ held by the sheriff, and, further, that the boundary and description of the land set out in the writ do not include the lands, or any of them, claimed by the appellants, and described in the petitions, respectively. A temporary injunction was granted in each case, restraining the appellee sheriff from executing the writ. At the succeeding term of the circuit court appellee filed a special and general demurrer to each of the petitions; the first being interposed upon the ground that the several petitions manifest a defect of parties, in that they do not make the plaintiffs in the action in which the writ of habere facias possessionem issued parties to these action, and the second upon the ground that the petitions, respectively, do not state a cause of action. The circuit court sustained the special, but overruled the general, demurrer, and entered an order requiring appellants to make the plaintiffs in the action in which the writ issued parties defendant in the several actions brought by the former, respectively; and, they failing to comply with this order, judgment was entered in each of the case dismissing the petition and dissolving the injunction. From the several judgments thus rendered, these appeals are prosecuted.

Section 22, Civil Code provides: "All persons having an interest in the subject of an action and in obtaining the relief demanded may be joined as plaintiff, unless it is otherwise provided in this Code."

Section 23 provides: "Any person may be made a defendant who claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination of the question involved in the action."

Section 28 provides: "The court may determine any controversy between the parties before it, if it can do so without prejudice to others; if it cannot do so, it must require such other persons to be made parties, or must dismiss the action without prejudice."

A special demurrer for defect of parties will lie only when such defect appears on the face of the pleading to which the demurrer is filed. Section 92, subsec. 4, Civil Code. But section 118, Civil Code, provides: "A party may, by an answer or other proper pleading, make any of the objections mentioned in section 92, the existence of which is not shown by the pleading of his adversary; and failure so to do is a waiver of any of said objections, except that to the jurisdiction of the court of the subject of the action." In our opinion a defect of parties was not shown by either of the petitions in question; therefore the court should have overruled the special demurrer, leaving it to the appellee the defendant in each of the actions, to show by proper pleading such defect of parties, as provided by subsection 4, § 92, Code. The petitions make no attack upon the judgment rendered in the action in which the writ of possession issued; the plaintiffs therein, respectively, merely consenting themselves with the allegations that they were neither parties nor privies to that action, that they are the owners or lands, respectively, of which the sheriff is threatening to dispossess them, and that, these lands are not included in the boundary set out in the writ of possession. It is doubtless true that the question of ownership or title could not be determined by the circuit court without making the plaintiffs in...

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11 cases
  • Miles v. United Oil Co.
    • United States
    • Kentucky Court of Appeals
    • July 1, 1924
    ... ... those defects must appear on the face of the pleading ... attacked. L. & N. R. R. Co. v. Stewart, 163 Ky. 164, ... 173 S.W. 757; Puckett" v. Jameson, Sheriff, 157 Ky ... 172, 162 S.W. 801; Richardson v. L. & N. R. R. Co., ... 129 Ky. 449, 111 S.W. 343, 112 S.W. 582 ...       \xC2" ... ...
  • International Harvester Co. of America v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • May 5, 1916
    ... ... person affected by it. Gullett v. Blanton, etc., 157 ... Ky. 457, 163 S.W. 465; Puckett et al. v. Jameson, ... Sheriff, 157 Ky. 172, 162 S.W. 801; Robinson v ... Carlton, etc., 123 Ky. 419, 96 S.W. 549, 29 Ky. Law Rep ... 876; Bean ... ...
  • Thompson-Starrett Co., Inc. v. Mason's Adm'rs
    • United States
    • Kentucky Court of Appeals
    • October 25, 1946
    ... ... demurrer, plea in abatement or in bar. Civil Code of ... Practice, Secs. 92, 118; Puckett v. Jameson, 157 Ky ... 172, 162 S.W. 801; Vassill's Adm'r v ... Scarsella, 292 Ky. 153, 166 S.W.2d 64. There would be a ... waiver of the ... ...
  • Thompson-Starrett, Etc. v. Mason's Adm'Rs
    • United States
    • United States State Supreme Court — District of Kentucky
    • June 3, 1947
    ...to maintain an action should be raised by demurrer, plea in abatement or in bar. Civil Code of Practice, secs. 92, 118; Puckett v. Jameson, 157 Ky. 172, 162 S.W. 801; Vassill's Adm'r v. Scarsella, 292 Ky. 153, 166 S.W. 2d 64. There would be a waiver of the defect of the parties by the plain......
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