Renshaw v. Cook, Judge

• Citation: 129 Ky. 347
• Parties: Renshaw v. Cook, Judge
• Decision Date: 20 June 1908
• Court: Court of Appeals of Kentucky

129 Ky. 347

Renshaw v. Cook, Judge

Court of Appeals of Kentucky.

June 20, 1908.

Application heard by the full court. — Writ granted.

COPYRIGHT MATERIAL OMITTED

S. Y. TRIMBLE attorney for appellants.

DOWNER & RUSSEL and TRIMBLE & BELL of counsel.

JOHN C. DUFFY, McQUOWN & BECKHAM, for defendants.

COPYRIGHT MATERIAL OMITTED

OPINION OF THE COURT BY CHIEF JUSTICE O'REAR. — Granting writ.

This is an application in this court for a writ of prohibition against his honor, Thomas P. Cook, judge of the Third judicial district of Kentucky, restraining him from interfering, by order or judgment of his court, with the trial of an application for an injunction before County Judge Prowse of Christian county, in an action in the Christian circuit court between J. M. Renshaw, as plaintiff, and David Smith, as defendant. The last-named action was brought by Renshaw against Smith to oust the latter from the office room in the county courthouse set apart for the sheriff of the county, and to enjoin his using the furniture, etc., or interfering with plaintiff in the occupancy of the said room and furniture, or the handling of judicial process, the collection of taxes, etc. Smith was elected sheriff of the county and qualified; but, having failed to renew his bond as required by statute, his office was declared vacant, and Renshaw appointed sheriff, who qualified by executing the bond and taking the oaths required by law. Smith, conceiving his removal to have been irregular, sued out an injunction against Renshaw's interfering with his incumbency of the office. The injunction was granted by Circuit Judge Cook. Application was made to Judge Barker, of this court, to dissolve the injunction. Upon hearing, Judge Barker did dissolve the injunction. Smith notwithstanding refused to give up possession of the office in the courthouse set apart for the sheriff. It was then Renshaw sued him for its possession, and sought an injunction against his continuing to occupy it, and thereby interfering with the plaintiff's discharge of his official duties. As the circuit judge was absent from the county, notice of application for a temporary injunction in the case was given to be heard before the county judge of the county. Before that application could be heard. Smith applied to the respondent as circuit judge of the district for a writ of prohibition against County Judge Prowse, restraining him from hearing or granting the injunction. In his petition Smith raises again the question of the validity of the order of the county court declaring his office vacant, claiming it was void for want of notice to him of the contemplated action. The respondent granted the temporary writ of prohibition against County Judge Prowse. By section 110 of the Constitution it is provided: "The Court of Appeals * * * shall have power to issue such writs as may be necessary to give it general control of inferior jurisdictions." Whenever any inferior jurisdiction, particularly a circuit court, is proceeding beyond its jurisdiction, the writ may issue out of this court on a proper application to prevent the exercise of the usurped jurisdiction. The party complaining will not in such case be put to the annoyance, expense, and jeopardy of a trial before the tribunal without jurisdiction; or, when the inferior court has jurisdiction, but there is not an adequate remedy by appeal, this court may in its discretion exercise a supervisory control over the inferior court so as to prevent irreparable injury and injustice. But it does not follow that, because this court may do so, it will, as a matter of right in a claimant, use this extraordinary writ in either of the instances above indicated. The matter rests in a sound judicial discretion, to be exercised upon the merits of the particular case. It is exercised most sparingly; for it is believed that ordinarily the usual process of the law, the remedy by appeal and the like, is sufficient to rectify any error that may be committed in the course of the trial below. There are many cases where no appeal is allowed to this court. It would be rare when this court would feel justified in interfering with the exercise of its jurisdiction by the inferior tribunal in such matters. And, in the exercise of discretion vested in them by law, the inferior courts will not be subjected to interference from this court merely because our views on the subject may be at variance with those of the lower court. There must in such case be such an abuse of discretion as would indicate a failure to hear, or a bias in the consideration of the question by the trial judge. But when there is not a discretion, and the inferior court is proceeding out of its jurisdiction, or is invading the jurisdiction of another court or officer, this court may grant the writ to prevent the unauthorized interference.

In the suit at bar there is raised the question of the validity of the action of the county court of Christian county in declaring a vacancy in the office of sheriff, and in appointing plaintiff Renshaw to fill the vacancy. The facts upon which this question is raised fully appear in the opinion delivered by Judge Barker on the motion to dissolve the injunction above alluded to when the case was before him on that question. We now adopt that opinion as the opinion of this court, and the question passed upon in that opinion are, for the reasons there given, now similarly approved by this court. That opinion is as follows:

"At the regular November election, 1905, the plaintiff, David Smith, was elected sheriff of Christian county, and thereafter qualified by taking the oath of office and executing the bonds required by law. On the first Monday in January, 1907, he executed the annual bonds required by the statute for the year 1907. On March 1, 1908, he failed to execute either of the three bonds required to be executed for that year, and on March 11 the judge of the county court entered an order declaring the office of sheriff vacant, and appointing the defendant, J. M. Renshaw, to fill the vacancy until the next general election for the office of sheriff. Thereupon the plaintiff filed this action in equity for the purpose of obtaining an injunction restraining Renshaw from taking possession of the office of sheriff of Christian county, or in any way interfering with the plaintiff in the execution by him of the duties thereof. A temporary restraining order was entered by the judge of the circuit court according to the prayer of the petition, and thereupon the defendant, upon notice, made a motion before me, as one of the judges of the court of appeals of Kentucky, to dissolve the injunction so obtained. After hearing the oral argument of counsel, I deemed the matter of such importance that I brought it before the Eastern division of the court of appeals, and submitted the various questions involved in the adjudication of the motion to the judges composing that division as if the motion were a case regularly pending in the court of appeals. The proper adjudication of the pending motion will involve a construction of the following sections of an act entitled `An Act relating to revenue and taxation,' enacted by the General Assembly of the Commonwealth of Kentucky in 1906 (see Sess. Laws 1906, pp. 152-153, c. 22), and of the Kentucky Statutes: Article 8, section 2: `The sheriff or collector shall, on or before the first day of March next succeeding his election, and on or before the said day annually thereafter, enter into bonds with surety for the faithful performance of his duties. A quietus by the auditor of public accounts, and from the fiscal court of his county for the preceding year shall be produced by each sheriff or collector to the county court on or before that day, and no tax book shall be delivered to the sheriff or collector after the first year of his term who shall fail to exhibit such quietus on or before that date. He may execute bond at any time after he receives his certificate of election up to and including the first day of March succeeding his election, and it shall be the duty of the judge of the county court to hold a court at any time the sheriff may request for that purpose. The county judge shall judge of the sufficiency of the surety, and in no case shall sureties be taken who are not jointly worth, subject to execution after the payment of all their debts and liabilities, a sum equal to the aggregate amount of money, which may probably be received by the sheriff or collector during the year succeeding the execution of the bond.' Article 8, section 3: `On the failure of the sheriff or collector to execute bond and qualify as hereinbefore provided, he shall forfeit his office, and the county court may appoint a sheriff or collector to fill the vacancy until a sheriff or collector is elected. * * *' Section 4557, Ky. Stats., 1903: `It shall be the duty of the county court to cause the sheriff, annually, to renew his bond required by this chapter, and oftener, if the court may deem proper; and upon his failure to do so, the court shall enter up an order suspending him from acting until he gives said bond, or the court may vacate his office.' Section 1058: `There shall be a regular term of the county court held by the county judge in each county once every month, on Monday, and until changed as herein provided, shall be held on the same day it now is. The time of holding the county court in any county may be changed by an order made by the county judge, and entered upon the records of the county court at the last regular term held in the year next preceding the year in which the change is to be made. Special terms of the county court may be held at any time for the transaction of any business except the probating of a will, or granting tervern, liquor, or druggist license; and the court may adjourn from time to time until the business is disposed of, but no adjournment shall be to a time beyond the commencement of the next...