Summers v. City of Louisville

• Decision Date: 13 October 1910
• Citation: 140 Ky. 253,130 S.W. 1101
• Parties: SUMMERS, Clerk, v. CITY OF LOUISVILLE et al.
• Court: Kentucky Court of Appeals

130 S.W. 1101

140 Ky. 253

SUMMERS, Clerk, v. CITY OF LOUISVILLE et al.

Court of Appeals of Kentucky.

October 13, 1910

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Rule on behalf of the City of Louisville and others against Louis Summers, Clerk. The rule was made absolute, and the clerk appeals. Affirmed.

See also, 130 S.W. 979.

Tyler Barnett, for appellant.

Jos. S Lawton and Clayton B. Blakey, for appellees.

HOBSON J.

Louis Summers is the clerk of the Jefferson circuit court. There was a suit pending in the court of City of Louisville v C. N. Keys, No. 56,404, in which the city sought to recover of the defendant certain taxes. The city attorney wished to take the papers of the case to his office to make a settlement with the defendants. The clerk refused to allow him to have the papers. Thereupon he obtained from the court a rule on the clerk to show cause why he refused to allow the city attorney to withdraw the papers of the action from his office. The clerk filed a response, which the court held insufficient, and, he declining to plead further, the court made the rule absolute, and ordered the clerk to permit the city attorney to withdraw the papers. From this order the clerk appeals.

Section 1039, Ky. St. (section 2908, Russell's St.), which is applicable to the Jefferson circuit court, provides: "The said court shall, in general term, make rules of said court, and shall have power, from time to time, to change said rules. Said rules shall be binding on each branch of said court until changed in general term." Rule 29 of the court, made pursuant to the statute, is as follows: "No papers shall be taken from the clerk's office except: (1) To the courtroom or to a judge of the court for the purpose of hearing a cause; or (2) to the office of commissioner of the court; or (3) to an official stenographic reporter of the court for the purpose of taking depositions; or (4) in pursuance of some statute authorizing or requiring such removal; or (5) in obedience to legal process; or (6) to the city attorney of the city of Louisville in tax cases in which the city of Louisville is plaintiff (not cross-plaintiff), provided that such papers shall be returned to the clerk's office at the request of the clerk, and in any event not later than noon on the Friday following their withdrawal. The clerk shall take the receipt of the member of the city attorney's office to whom the papers are delivered, and shall cancel the receipt when they are returned."

The sum of the clerk's contention is...