Robinson v. Carlton

Citation123 Ky. 419,96 S.W. 549
PartiesROBINSON v. CARLTON ET AL.
Decision Date05 October 1906
CourtCourt of Appeals of Kentucky

Appeal from Circuit Court, Grant County.

"To be officially reported."

Action by Marion Robinson against John M. Carlton and others. From a judgment sustaining demurrers to the petition, petitioner appeals. Reversed for proceedings consistent with the opinion.

J. G Tomlin and J. L. Vest, for appellant.

C. H Beasley, for appellees.

SETTLE J.

This equitable action was instituted by appellant to prevent, by injunction, the sale of his land under an execution for a small amount in favor of appellee, John M. Carlton, which was levied on the land by the appellee, W. H. Barker, sheriff of Grant county. It appears that judgment was obtained by appellee, Carlton, in the court of F. M. Blackburn, a justice of the peace of Grant county, against one Marion Robinson for the amount named in the execution. An execution issued from the magistrate's court on this judgment, and was returned "No property found," thereafter, a transcript of the judgment, execution and return, and taxation of costs was filed in the office of the clerk of the Grant circuit court, and from that office the execution issued which the sheriff, to whom it was directed, levied on appellant's land. Upon the filing of the petition, appellant was granted a temporary restraining order. At the succeeding term of the circuit court, demurrers, special and general, were filed to the petition by appellees, the former raising the question of want of jurisdiction, and the latter assailing the sufficiency of the petition. Both demurrers were sustained. Appellant then filed an amended petition, and appellees insisting upon the demurrers to the petitions as amended, they were again sustained by the court. As appellant did not further amend, judgment was entered dismissing the action at his cost, and from that judgment he has appealed.

Do the facts alleged in the petition authorize the granting of the relief asked by appellant? The original petition was clearly insufficient. As amended some of its averments are inaccurate in form and incomplete in statement, others are mere conclusions of the pleader, but considered as a whole it substantially manifests these essential facts which on the face of the petition are confessed by the demurrer. (1) That appellant was not served with summons from magistrate Blackburn's court, or any other court, in the action of John M. Carlton v. Marion Robinson, wherein was rendered the judgment supposed to authorize the issual of the execution levied on appellant's land. (2) That the judgment in question was not rendered against him. (3) That at the time of the institution of the action in the justice's and when the judgment was rendered, there was another man residing in Grant county bearing appellant's name, Marion Robinson, and he--the other Marion Robinson--is the person against whom the judgment was rendered, if rendered at all. (4) That not only had execution issued on this judgment, but it had been levied by the sheriff on his land, and the land duly advertised for sale thereunder, and finally, that the sale thereof would immediately be made by the sheriff under, and in satisfaction of, the execution, to the injury and irreparable loss of appellant, unless prevented by injunction. We think the petition as amended states a good cause of action.

It is contended by counsel for appellees that the petition is bad because it fails to allege in terms that appellant was not at the time of the rendition of the judgment in the magistrate's court, indebted to Carlton, the plaintiff therein, on the demand sued on. It is true, such averment is wanting, but if appellant had been indebted to Carlton that fact would not have authorized a judgment against him, or given any legal effect to that rendered, if, as alleged in the petition, he had not theretofore been served with summons or warrant. In other words, if, as alleged in the petition appellant was not served with summons in the magistrate's court in the case mentioned, and the judgment therein was not rendered against him, but against another resident of the county of the same name, the judgment is void as to him, and his land is not subject to the...

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5 cases
  • Logsdon v. Logsdon
    • United States
    • Court of Appeals of Kentucky
    • 1 Julio 1924
    ...courts as valid. We are aware that there are opinions from this court, of which the cases of Bramlett v. McVey, 91 Ky. 151, and Robinson v. Carlton, 123 Ky. 419, are examples, where it was held that the circuit court, which is one of original and general jurisdiction, might enjoin the enfor......
  • Gunn v. Wagner, 47875
    • United States
    • United States State Supreme Court of Iowa
    • 5 Junio 1951
    ...from Lockwood v. Kitteringham, supra, 42 Iowa 257, 259. See Zimmerman v. Makepeace, 152 Ind. 199, 52 N.E. 992, 993; Robinson v. Carlton, 123 Ky. 419, 96 S.W. 549; Van Ratcliff v. Call, 72 Tex. 491, 10 S.W. 578; 21 Am.Jur., Executions, section 586. An extended note in Ann.Cas.1918C, 152, 280......
  • Logsdon v. Logsdon
    • United States
    • Court of Appeals of Kentucky
    • 1 Julio 1924
    ......We. are aware that there are opinions from this court, of which. the cases of Bramlett v. McVey, 91 Ky. 151, 15 S.W. 49, and Robinson v. Carlton, 123 Ky. 419, 96 S.W. 549, are examples, where it was held that the circuit court,. which is one of original and general jurisdiction, ......
  • Stamper v. Bramlage, 2015-SC-000477-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • 5 Mayo 2016
    ...we have clear precedent that provides clear authority for enjoining a judicial sale of real estate in this situation. Robinson v. Carlton, 96 S.W. 549, 551 (1906), provides that injunctive relief restraining the judicial sale of land is proper:where the real estate of the plaintiff is about......
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