Stephens v. Wilson

• Decision Date: 04 March 1903
• Citation: 115 Ky. 27,72 S.W. 336
• Parties: STEPHENS v. WILSON et al.
• Court: Kentucky Court of Appeals

72 S.W. 336

115 Ky. 27

STEPHENS v. WILSON et al.

Court of Appeals of Kentucky.

March 4, 1903

Appeal from circuit court, Bath county.

"To be officially reported."

Action by W. R. Stephens against Charles Wilson and others. Petition dismissed, and plaintiff appeals. Reversed.

Alex Conner and C. W. Goodpastor, for appellant.

R Gudgell & Son, for appellees.

BARKER J.

This action was instituted in the Bath circuit court by the appellant, W. R. Stephens, to recover damages of the appellees, Charles Wilson, J. M. Atchison, and S. C. Bascom Jr., for false imprisonment. The petition states that "On the 4th day of December, 1901, the defendants Charles Wilson and J. M. Atchison, in Bath county, Kentucky wrongfully, and without authority of law, and against his will and consent, advised, requested, and caused their codefendant, S. C. Bascom, Jr., to assault and forcibly arrest and take into custody and imprison the plaintiff [appellant], W. R. Stephens, and that said S. C. Bascom, Jr., did on said day, in the town of Salt Lick, Bath county, Kentucky, against appellant's will and consent, wrongfully, and without authority of law, assault and forcibly arrest and take the plaintiff [appellant] into his custody, and imprisoned him, and forcibly and against his will and consent took him from the town of Salt Lick to the town of Owingsville, Bath county, Kentucky, a distance of some nine miles, and there detained and kept him in his custody, and imprisoned him for the period of about five hours, until appellant was finally released from imprisonment upon a writ of habeas corpus." For this injury, appellant prayed judgment against the defendants in the sum of $5,000. A general demurrer to the petition having been overruled, appellees Charles Wilson and J. M. Atchison filed a joint answer, intended to be a traverse, but which, we think, is in conflict with that provision of the Code requiring that each material allegation which it is proposed to controvert shall be specifically denied. The answer merely groups the allegations of the petition together, and denies them as a whole. S. C. Bascom, Jr., filed a separate answer, the first paragraph of which is practically a counterpart of the answer of his codefendants, Wilson and Atchison, and bad for the same reason. The second paragraph undertakes to justify the arrest of appellant by stating, in substance, that he was the deputy sheriff of Bath county, and there came to his hands, as such officer, a warrant of arrest for the plaintiff (appellant), W. R. Stephens, issued by the clerk of the Bath county fiscal court, dated December 3, 1901, directed to the sheriff of Bath county, and commanding him to arrest appellant, and have him at the courthouse in Owingsville, Ky. at 10 a. m., December 4, 1901, to attend a session of the Bath fiscal court (appellant being a member of the court), as well as answer for contempt in not obeying the summons served upon him to attend the session held on the 3d day of December, 1901; that under this warrant he arrested appellant, who refused to give bail, requesting to be put in jail, which was not done, he being afterwards released on a writ of habeas corpus; that all of the acts done by appellee under this warrant were done by him in good faith, and in his official capacity as deputy sheriff. A demurrer to this paragraph having been overruled, appellant excepted. Afterwards the appellees Wilson and Atchison filed an amended answer, in which they state, in substance, there being a vacancy in the office of county treasurer for Bath county, appellee Charles Wilson and two other justices of the peace of Bath county requested the county judge, John A. Daugherty, to call a special session of the fiscal court to fill it. This being refused, Charles Wilson and the two other justices of the peace, who constituted three of the five justices holding office in Bath county, met, elected one of their number chairman, served notice on appellant, who was also a justice of the peace of Bath county, requiring him to attend the meeting thus instituted. Appellant having failed to do so, these three caused the clerk of the county court to issue a warrant of arrest against appellant, directed to the sheriff of Bath county, requiring that officer to arrest and bring him before the court on the 4th day of December, 1901, in order to make a quorum of the fiscal court of Bath county. This warrant of arrest thus issued came to the hands of S. C. Bascom, Jr., deputy sheriff for appellee J. M. Atchison, the sheriff of Bath county. In pursuance of the warrant, the officer took appellant into his custody, and brought him to Owingsville, where he was released on a writ of habeas corpus. Appellant's demurrers to the second paragraphs of the answers having been overruled, he declined to plead further, whereupon the court dismissed his petition, and he has prayed an appeal to this court.

Appellees contend that this case should be affirmed, because the first paragraphs of the answers traverse the material allegations of the petition, and therefore it was incumbent upon appellant, who was the plaintiff below, to introduce evidence in support of its allegations; that, he having failed to do so, the judgment of dismissal should be affirmed. This contention may be disposed of by repeating what we have already said--that the first paragraphs of the answers are bad, for the reasons stated, and made no issue between appellees and appellant. Moreover, the court rendered judgment on the pleadings, and, if appellees' contention that there were issues of fact raised by the first paragraphs of the answers, be sound, no opportunity was afforded appellant to introduce his evidence in support of his petition; the court evidently believing that the merits of the case turned upon the facts alleged in the second paragraphs of the answers, and that these constituted a valid defense to appellant's cause of action. The pleadings show there are five justices of the peace of Bath county. These, together with the county judge, constitute the fiscal court. The following sections of the Kentucky Statutes are material to the solution of the questions before us:

"Sec. 1833. Each county in the commonwealth of Kentucky shall have a fiscal court, which shall consist of the judge of the county court and the justices of the peace of said county, and their successors in office, in which court the judge of the county court shall preside, if present. If said judge is not present, and cannot preside, then a majority of the justices of the peace shall elect one of their number to preside; said justice so elected to act as judge of said court during the absence or inability of the county judge to preside. ***

"Sec. 1834. Unless otherwise provided by law, the corporate powers of the several counties of this state shall be exercised by the fiscal courts thereof respectively."

"Sec. 1836. The county judge shall be the presiding judge of the fiscal court, preserve order, and may fine and imprison for contempt of court, the same as when presiding as judge of the county court; and in the absence of the county judge, or when he cannot preside, the justice elected in his stead while sitting shall have the same powers as the judge of the county court when presiding as a member of the fiscal court.

"Sec. 1837. Not less than a majority of the members of the fiscal court shall constitute a quorum for the transaction of business, and no proposition shall be adopted, unless by a concurrence of at least a majority of the court present.

"Sec. 1838. The fiscal court shall be a court of record, and shall hold two regular terms in each year, commencing on the first Tuesday of April and October, and continue until the business of the court is disposed of. But the county court of any county may, by an order of record, fix a different date for the commencement of said terms: provided that one of said terms shall be held in October. The county judge shall have the power to call a special term of said court

...